Appendix — United States v. Powell
Supreme Court brief1975
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APPENDIX :
IN THE
Supreme Court of the United States
OCTOBER TERM, 1974
No. 74-884
UNITED STATES OF AMERICA,
Petitioner
|
JOSEPHINE M. POWELL,
Respondent
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI FILED JANUARY 17, 1975
CERTIORARI GRANTED MARCH 17, 1975
IN THE
Supreme Court of the United States
OCTOBER TERM, 1974
No. 74-884
UNITED STATES OF AMERICA,
Petitioner
—
JOSEPHINE M. POWELL,
Respondent
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
INDEX
Page
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Excerpted portions of trial transcript ...............0.200.222.-.2......-- 7
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CRIMINAL DOCKET
UNITED STATES DISTRICT COURT
RELEVANT DOCKET ENTRIES
PROCEEDINGS
Oct.
Nov.
Filed Indictment—Court ordered $1,500 bond
continued
Issued Warrant for Arrest of Defendant
Filed Warrant for Arrest of Defendant
Arraigned—PLEA NOT GUILTY (S/N)
Court ordered bond continued
Filed Notice of Substitution of Attorneys (Atty
Lawrence Smith for apptd. Atty Donohue)
Filed (Deft) Motion for Extension of Time,
10/29/73
Filed (Deft) Motion for Discovery Agreed
10/29/73
Filed (Deft) Notice of Hearing
Filed (PItf) Motion Requiring Submission of
Handwriting Exemplar Ordered Granted
10/29/73
Filed Affidavit of Service by Mail
Filed (Deft) Motion for Additional Discovery
Agreed 10/29/73
Filed Voucher for Counseling Services—$255.00
(Atty Donohue)
Entrd Order Granting Plaintiff's Motion for
Handwriting Exemplar
Distr Copies to USAtty & Atty Smith
DATE PROCEEDINGS
1973
7 Filed (Deft) Motion to Permit Defendant to
Travel to Marian, Illinois
7 Entrd Order Permitting Defendant to Travel to
Marian, Illinois
7 Distr Copies to USAtty & Atty Smith
19 Filed (Deft) Motions to Dismiss Ordered Denied
11/19/73
Nov. 19 Filed (Deft) Petition to Obtain Prisoner for
Testimony
19 Filed Subpoena—Teresa Bailey
21 Filed Subpoenas—Carol Cornehl, et al
26 Entrd Order (re compliance with subpoena)
26 Entrd Order Denying Motion to Dismiss (Of
Deft)
26 Filed (Atty Gen) Motion to Quash Subpoena
Duces Tecum (served on Carol Cornehl)
ordered denied 11/26/73
26 Filed Subpoenas—Bob McDaniel, et al
27 JURY TRIAL (S/N)
27 Filed Government’s Proposed Instructions
27 Filed Jury List (of Challenges)
28 SECOND DAY TRIAL
28 Filed Defendant’s Proposed Jury Instructions
29 THIRD DAY TRIAL
30 FOURTH DAY TRIAL
30 Filed Court’s Instructions
30 Filed Verdict—GUILTY
Referred for presentence investigation
RT
DATE
PROCEEDINGS
1973
17
18
Court ordered bond continued
Filed (Deft’s) Motion for New Trial, Motion Ar-
rest of Judgment, and Motion for Judgment
N.O.V. Ordered Denied 12/14/73
Filed Subpoena—Charles E. Westbrooks
Filed Notice of Hearing
Sentenced—2 yrs. impr. (S/N)
Entrd Judgment and Commitment CrOB-4-
Distr Copies to USAtty, Marshal, Prob. & Atty
Smith & PO
Filed NOTICE OF APPEAL
Distr Copies of Notice of Appeal to USAtty, Atty
Smith, Deft, Court Reporter Sturdevant &
Marshal
Mailed copy of docket entries w/copy Notice of
Appeal to 9CCA
Filed Bail Bond Pending Determination of Appeal
—$1500—Resolute Insurance Co.
Filed (Deft) Motion for Appointment of Counsel
Under Rule 44 Ordered Granted 1/14
Filed Notice of Hearing
Filed Affidavit of Josephine Powell in Support of
Motion Under Rule 44 for Appointment of
Counsel
Entrd Appointment (of Atty Moberg) (for Ap-
peal) (mailed copy to 9CCA)
Entrd Order Authorizing Withdrawal of Attorney
(Atty Smith)
PROCEEDINGS
Feb.
Mar.
Apr.
S 8 4
i)
ll
28
Distr Copies to USAtty & Atty Smith
Filed Voucher for Counseling Services—$90.00
Filed Defendant—Appellant’s Designation of
Record on Appeal
Filed (Deft) Motion and Affidavit for Extension
of Time to Docket Appeal
Entrd Order Extending Time (2/13/74)
Distr Copies to USAtty, Atty Moberg, 9CCA and
Court Reporter Sturdevant
Filed Affidavit of Mailing
Filed Reporter’s Transcript—Transcript of Trial
Proceedings (11/27, 28, 29, & 30/733 (two
volumes)
Forwarded Record on Appeal to 9CCA
Filed Authorization (for Court Reporter Stur-
devant)
Filed Voucher for Expert or Other Services—
$952.20
Filed Defendant-Appellant’s Additional Designa-
tion of Record on Appeal
Forwarded Supplemental Record on Appeal to
9CCA
Filed (Pitf) Motion and Affidavit for Supple-
mental Record on Appeal
Entrd Order Directing Clerk to Supplement Rec-
ord on Appeal
Distr Copies to USAtty & Atty Moberg
DATE PROCEEDINGS
1974
23 Forwarded Second Supplemental Record On Ap-
peal to 9CCA
Attest: A True Copy
J. R. FALLquist, Clerk
United States District Court
Eastern District of Washington
By /s/ Barbara A. Severance
Deputy Clerk
[SEAL]
6
Presented to the Court by the Foreman
of the Grand Jury, in open Court, in
the presence of the Grand Jury and
filed in the United States District Court
for the Eastern District of Washington
Sep. 13, 1973.
J. R. FALLQuist, Clerk
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
No. C-9634
UNITED STATES OF AMERICA, PLAINTIFF
v8.
JOSEPHINE M. POWELL, DEFENDANT
Mailing of Non-Mailable Firearm
VIO: 18 USC §1°%5
INDICTMENT
The Grand Jury charges:
That on or about the 7th day of March, 1973 at
Spokane in the Eastern District of Washington, JO-
SEPHINE M. POWELL unlawfully and knowingly did
deposit in the Post Office at Spokane, for mailing and
delivery to Teresa Bailey at Tacoma, Washington a fire-
arm capable of being concealed on the person, to-wit: a
sawed-off shotgun, in violation of Title 18 USC § 1715.
A TRUE BILL
/s/ Lanning C. Mills
Foreman
DEAN C. SMITH
United States Attorney
DATE: September 12, 1973.
[TRIAL PROCEEDINGS, NOVEMBER 27, 1973]
[TESTIMONY OF THERESA ANN BAILEY]
[4] (The exclusionary rule was invoked, with the excep-
tion of Mr. Lewis for the plaintiff; and Mr. Hoots
for the defendant. ) .
(Plaintiff’s opening statement was made to the jury,
not transcribed herein.)
PLAINTIFF'S CASE IN CHIEF
THERESA ANN BAILEY,
called as plaintiff's witness, being first duly sworn, testi-
fied as follows herein,
BY THE CLERK:
Q Would you please state your full name for the jury
and the Court, please?
A Theresa Ann Bailey.
DIRECT EXAMINATION
BY MR. CRUM:
Q I will ask you to speak loudly so that the Court
and the members of the jury can hear you. Now, your
name is Theresa Ann Bailey, you said?
Yes.
What is your present address?
1718 South 65th, Tacoma, Washington.
How long have you resided at that address?
Over a year.
Q Are you married?
Yes.
Do you have any children?
Yes, three.
What are their ages?
Three, four and six.
Do they live with you?
Yes.
[5
PO PO PO PP PO POY
Q Are you employed outside of your home?
A No.
Q You stated you are married. What is your hus-
band’s name?
Does he live with you and your children?
No.
Where does he live?
McNeil Island.
He is an inmate of that institution?
Yes.
I take it he has been convicted of a federal crime?
Yes.
What was that crime?
Forgery.
Q Do you recall what the date of his conviction
approximately?
October, 71.
Where was he convicted?
Seattle.
And at that time he was sentenced to prison?
Yes.
Did he go directly then to McNeil Island?
No, he went to Lompoc, California.
A federal institution in California?
Yes.
How long did he remain at Lompoc?
Until July of °72. Then he was transferred to
McNeil.
Q Do you recall the approximate date that he arrived
at McNeil?
A It was sometime in July.
Q Of what year?
A °72.
Q 1972. Has he then been at McNeil Island since
approximately July of 1972?
A Yes.
Q He is there at this time?
A Yes.
POPOPOPOPOY
£5
POPOPOPOPO Ph
9
Q Where is McNeil Island Penitentiary located?
A It is right out of the town of Steilacom.
[7] Q Is that near Tacoma?
A Yes.
Q And your home is in Tacoma?
A Yes.
Q How far is the island, the penitentiary, from your
home?
About a fifteen minute drive.
Do you visit your husband at McNeil Island?
Yes.
How often do you visit him?
Four times a month.
Mrs. Bailey, I am going to direct your attention to
the month of February of 1972. This past February.
More specifically, the latter part of February of 1972,
were you at that time living at your present address in
Tacoma?
A Yes.
Q Your husband at that time was also in McNeil
Island?
A Yes.
Q During this period of time that I referred to, did
you receive what you regarded as a somewhat unusual
package through the mail?
A Yes.
Q Was this package delivered to your home?
A Yes.
Q To whom was it addressed?
[8] A Mrs. Bailey.
Q To you?
A Yes.
Q To your knowledge did the package bear a return
address?
Yes.
Q Do you recall what the return address was?
A No.
Q Do you recall either the city—
A It was from Spokane, Washington.
OPO POS
>
10
Q You noticed that when you received the package, it
was from Spokane?
A Yes.
Q But you don’t recall the—
A The address.
Q —the address. But you say there was an address
on the package?
A Yes.
Q How about the name of the party who sent the
package, was that on it?
A No, it was not.
Q Do you have friends or relatives in Spokane?
A I have relatives but I have never seen them since I
was a little girl.
Q So, there is no one in Spokane that you can think
of who would be sending you such a package?
[9] A No.
Q Would you describe the package?
A It was long and heavy.
Q How was it wrapped?
A It was in brown paper with strings around it, as I
recall.
Q When you received this package, was it left on
your doorstep, or handed to you?
A The mailman came to my door.
Q Did you sign any sort of receipt for that package?
A Yes, I did.
Q Mrs. Bailey, I am showing you what is marked
for identification as Plaintiff’s Exhibit 1. Can you tell
me whether or not you recognize that?
A Yes.
Q What does it appear to be to you?
A My signature is on the bottom, where I signed for
the package.
MR. CRUM: I move for the admission of Plaintiff’s
Exhibit 1, your Honor.
— COURT: Has counsel had a chance to examine
it
MR. MOBERG: I haven’t had a chance to see it,
your Honor.
THE COURT: Look at the proposed exhibit.
11
MR. MOBERG: May it please the Court, I’m going
[10] to object to the entry of that on the basis that there
is not only Mrs. Bailey’s signature but there is some
other writing on there. There is no evidence or proof
of any sort how that other writing got there, who put
it there, or what it stands for, or anything else. I think
all you have there is a piece of paper with a signature
on it, and it is stamped. On that basis we will object to
the admission.
THE COURT: Would you clear up the question of
the other writing?
BY MR. CRUM:
Q Mrs. Bailey, do you recall the date that you re-
ceived this package?
A March 28.
Q March 28?
A Yes, sir.
Q Could it have been February 28?
A I mean February 28, I’m sorry.
Q It was delivered to you by a postal inspector and
you at the time you received it signed a receipt, did you
not?
A I signed this here (in‘ticating).
Q That is the receipt you signed on February the
28th when you took possession of that package?
A Yes.
[11] Q Do you recall whether or not the slip was
filled out as it is there the day of the delivery?
A Yes, because I asked him where I signed at, and
he told me to sign there at the bottom, because he asked
me if my name was Mrs. Bailey.
MR. CRUM: Your Honor, I think we have shown
essentially, through Mrs. Bailey, the contents of that slip.
THE COURT: Let me see it.
I think counsel’s problem had to do with some writing
at the top.
MR. MOBERG: On the bottom.
MR. CRUM: I do have a witness who can clarify
that.
MR. MOBERG: Might I inquire on voir dire?
12
THE COURT: Yes, you may.
MR. MOBERG: I assume that there is some ink
writing on the top that looks like the inspector’s identi-
fication. We are not going to require the United States
to prove the identification of this document. Our ob-
jection is to the penciled-in writing.
VOIR DIRE EXAMINATION
BY MR. MOBERG:
Q Mrs. Bailey, now your testimony was that this
document, marked Exhibit 1, was all filled in?
[12] A Uh-huh.
Q You remember that because of the date and that
you said you were Mrs. Bailey?
A (Witness nods)
Q Do you recall other than, say, refreshing your
memory from that piece of paper, the date that you
received that package?
A Yes, it was February 28.
Q Do you recali a prior discussion that you and I had
in Tacoma, Washington?
A Uh-huh.
Q At that time I introduced myself as counsel for the
defendant, and we talked about this case, is that cor-
rect?
A Yes.
Q Do you recall whether or not at the time I asked
you about the questions of this date that you received
the first package? i
A I believe you did. I can’t—
Q Did you give me the date at that time?
A I don’t remember if I did or not.
Q Would it refresh your memory if I recalled some
of the circumstances of that discussion at that time?
Did you or did you not tell me that you were trying to
forget the date, and that you didn’t know when you
received it?
[13] A I did, because it upset me quite badly.
13
At this point you remembered the date of the
package. Is that because you read it on that slip?
A No.
MR. MOBERG: I submit, your Honor, that the wit-
ness’s identification of this is simply what it represents
to her. I don’t think from her own recollection she can
testify that that thing was filled out in this writing at all.
THE COURT: I think it goes to the weight.
e e 5d *
DIRECT EXAMINATION (Continuing)
BY MR. CRUM:
Q Now, Mrs. Bailey, that document there does re-
flect what information, could you tell the jury? Go
ahead and look at it and tell us, does it tell that a
package [14] was mailed to you?
A Yes.
Q And what date does it reflect on there that the
package was received?
The 28th.
Of what month?
Of February.
What does it say?
Second-28-73.
Q Does it indicate on there where the package came
from?
A Spokane, Washington.
Q Now, with respect to this package, and we are
talking about the package that you signed for here,
Mrs. Bailey, did you open that package?
A Yes, I did.
Q What did it contain?
A Two guns and some shells—two shotguns and
shells, and hacksaw blades.
Q Were you expecting a package of this sort?
A No, I was not.
Q Now, Mrs. Bailey, you testified there were two
shotguns in this package, among other items. What
PO PO Pp
i4
condition were the shotguns in when you opened the
package?
A They were broken down.
I am showing you what is marked for identification
as [15] Plaintiff’s Exhibit 2. Can you tell me whether
or not you recognize that exhibit?
A The barrel.
Q You recognize the barrel. How do you recognize
the barrel?
A Because I picked it up and looked at it.
Q When you opened the package?
A Yes.
Q You are saying you recognize that barrel as being
the barrel you picked up when you received the package
on February 28?
A Yes.
Q Well—are you positive that is exactly the same?
A No.
Q Does it appear to be similar to the barrel you
picked up on the 28th?
A Yes, it does.
Q Did you pick up any other parts of that weapon?
A No.
Q So, you are unable to say that the other items
also marked as Exhibit 2, are items received by you on
February 28th, you are unable to say that?
A Right, yes.
Q You say you picked up that barrel. What did you
notice when you picked up the barrel?
[16] A The two holes on it.
You mean the fact that it is a double-barreled—
MR. MOBERG: Your Honor, I object. I think coun-
sel is leading the witness and doing a bit of testifying
on his own.
MR. CRUM: Two barrels signify double, your Honor,
I don’t think that is leading.
THE COURT: Rephrase your question.
BY MR. CRUM:
Q You are saying you recognize that weapon there as
the same because it has two holes in it.
oe eR Oe BS RR CONE wurst Nl
15
A Yes.
Q All right. Now, Mrs. Bailey, I am showing you
what is marked for identification as Plaintiff’s Exhibit 3.
Do you recognize that exhibit?
A The handle of it, the butt part of it.
Q How do you recognize it?
A By this marking down here at the bottom.
Q Does that appear to be similar to the same shotgun
that you testified was in that package you received on
February 28?
A Yes.
Q Did you pick that shotgun up?
A No.
Q Did you look at the barrel of that shotgun?
[17] A (Witness nods)
Q Was it in the same condition when you received it?
A It was broken down.
Q You are saying that the only thing that looks the
same to you is the handle?
A The handle.
Q So you cannot tell us this is positively the gun you
received when you got the package on February 28?
A No.
Q But it does appear similar?
A Yes.
Q All right. Now, Mrs. Bailey, you, I believe, indi-
cated there were other items in that package. What were
the other items?
A Two packages of shells and hacksaw blades.
Q What sort of shells?
A Shotgun shells.
Q Showing you what is marked for identification as
Plaintiffs Exhibit 4, could you take a look at that ex-
hibit and tell us what it appears to be?
A Both of these?
Q I believe that is 4, there.
A (Witness looks at proposed exhibit) Shells.
Q_ Let’s leave it at that for a moment, Mrs. Bailey.
You can take it out of there.
[18] A This out of here?
—_
16
Q It can be taken out. Now, the shotgun shells you
referred to in your testimony, were they in packages?
A They were in boxes.
Q Does that package appear to you to be similar to
the case the shotgun shells were received in?
A Yes, except they weren’t in plastic.
Q You are not able to tell us those are the identical
shells you received in the package?
A No.
Q But they appear similar to the ones you received on
February 28?
A Yes.
Q Now, if you would take a look, if you would at
what has been marked as Plaintiff’s Exhibit 5,—
MR. CRUM: I would like to have that marked as 5,
if I could.
THE CLERK: I marked them both 4.
MR. CRUM: I would like that marked 5, if I could.
BY MR. CRUM:
Q Would you tell us what Proposed Exhibit 5 ap-
pears to you to be?
A Hacksaw blades.
Q Would you pull it out of the package.
A (Witness removes objects from package)
[19] Q Do those appear to be similar to those—
MR. MOBERG: Your Honor, I object again on the
same grounds, that most of the testimony is by the
United States Attorney and not by the witness. I would
like to hear what the witness has to say.
THE COURT: I think this question is all right.
Q Do they appear similar to the blades you received
on February 28?
Yes, except they were in individual packages.
Do you recall how many blades there were?
No, I didn’t count them.
Approximately.
Twenty or thirty, I don’t know.
You can’t tell us those were the same blades in the
package?
OPOrPoOpyp
17
MR. MOBERG: I object again, your Honor. The
United States Attorney is putting words in the witness’s
mouth.
THE COURT: Overruled.
Q You cannot tell us those were the same blades that
you received on February 28th?
A No, but they appear to be the same.
Q I believe you said the condition of the shotguns
that had been shown you here were essentially the same
as the shotguns you received, that is, broken down?
[20] A Yes.
Q What did you do with these items that you have
seen here in court after you opened the package?
A I put them in my closet, away from my children.
And then I went over—on the 2nd I went over and talked
to my husband about it.
Q Well, you put them in your closet. What did you
do with the wrapping paper?
A I threw it in the garbage because I had tore it off
and I put it in the garbage can.
Q Then you put the items in the closet?
A Yes.
Q Then what action in response to the receipt of these
items did you take?
A I went over to see my husband and talked to him.
Q What was the purpose of that visit?
A I wanted to know if he sent these or what was
happening, and he swears to God he did not send them
to me.
Q After you visited with your husband, did anyone
contact you relative to this package you had received?
A I got a phone call the next day from Mr. Hicker,
and Mr. Byrd.
Q Who is Mr. Hicker?
A. An FBI agent for McNeil Island.
Q Mr. Hicker is an FBI agent?
1} A Yes.
Q How about Mr. Byrd?
A FBI agent in Tacoma.
Q Following your telephone call, did you speak with
both Mr. Hicker and Mr. Byrd?
18
A I talked with Mr. Hicker.
Q Did you have occasion—did you know Mr. Hicker?
A Yes.
Q Did you ever have an occasion after this phone call
to meet personally with Mr. Hicker?
I did when I took him the guns, I met him.
Okay. Do you recall when that was?
It was on the 8rd.
The 3rd of March?
Yes.
1973?
Yes.
You took the contents of the package that you re-
ed on February the 28th to Mr. Hicker?
Yes.
Was anyone with Mr. Hicker?
Mr. Byrd.
Where were they?
Behind the mall in the parking lot.
In Tacoma?
A Yes.
Q Did you turn the contents of the package over to
him at that time?
A Yes.
Q What was it that you turned over to him?
A Two shotguns, shells, and hacksaw blades.
Q Now, directing your attention, Mrs. Bailey, to the
9th day of March, of 1973, does that date stick in your
mind?
A Yes.
Q Did you receive a phone call from anyone on that
date?
DPOPrPO POY
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2
ROPO POY
=
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I received a phone call from a woman.
On March 9?
Yes. Telling me—
Do you recall the time of day?
Between 2:30 and 4:00 o’clock.
How can you be sure of that?
Because I just came back from seeing my husband.
a the caller identify herself?
0.
POPO POPoOp
19
Q What was the substance of the conversation?
A She told me—
[24] PROCEEDINGS RESUMED WITHIN THE
HEARING OF THE JURY:
BY MR. CRUM:
First of all, did the woman identify herself?
No.
Would you tell us what the conversation was?
She asked me if I was Theresa Bailey and I said
yes, and she said a second package was coming, and it
was a mistake. I was to give the second package to Sally,
and I said I did not have an address or any way of
giving it to Sally, and she said all right, she would
call me back.
Q Did you know Sally?
A No.
Q And did you recognize the voice?
A No.
Q After you received the phone call did you take any
action?
A I called Mr. Hicker and told him. He said yes, I
had another package and he told me I wouldn’t get it.
[25] MR. MOBERG: Objection. She can’t testify what
Mr. Hicker said.
THE COURT: The objection is well taken.
Q But you did contact Mr. Hicker?
A Yes.
Q Other than that, did you have any other personal
contact with Mr. Hicker?
A Only my phone, until the package came.
Q Now, Mrs. Bailey, what was your telephone num-
ber on March 9?
A GRQ-97-97.
Q ag that an unlisted phone number?
0.
: rom you receive any other calls from this woman?
0.
OPO
20
Q Or from a woman?
A No.
Q And you had not received a second package at the
time this call was made?
A No.
Q Did you subsequently receice a second package?
A Yes.
Q Do you recall the date you received that second
package?
A On the 13th.
Of what?
A March.
Of 1973?
Yes.
Was the package delivered to your home?
Yes.
Was it left on the front doorstep?
The mailman handed it to me.
Did you sign a receipt for that package?
N
—_—
to
mn
—
0.
Who was the package addressed to?
Mrs. Bailey.
Addressed to you?
Yes.
Did it have a return address on it?
Spokane.
MR. CRUM: I wonder if I might approach the bench
just for a moment, your Honor?
PO PO PO PO PO PO PO
PROCEEDINGS AT THE BENCH, OUT OF THE
HEARING OF THE JURY:
MR. CRUM: I was thinking about asking her this
question. Whether she recalls if the handwriting on the
second package was similar to the first.
MR. MOBERG: Object to that. She can’t even re
member the first package.
THE COURT: No, the objection is sustained.
21
[27] PROCEEDINGS TO THE COURT
AND TO THE JURY:
BY MR. CRUM:
Mrs. Bailey, did you open this package?
No, I did not.
What did you do with it?
I called Mr. Hicker and told him I had the package.
Now, Mrs. Bailey, showing you what is marked for
identification as Plaintiff’s Exhibit 6, can you tell me
whether or not you recognize that item?
Yes.
What does it appear to you to be?
A square package.
Have you ever seen it before?
The day I got it.
Is this the package that you have indicated you
received on—what date?
A March the 13th.
Q How do you recognize that package?
A Because I initialled it and put the time and the
date on it.
MR. CRUM: I will move for the admission of Plain-
tiff’s Exhibit 6 now, your Honor. I believe that counsel
has had an opportunity to look over the package.
MR. MOBERG: We have no objection to the admis-
sion of the package.
{28} THE COURT: All right. Plaintiff's Exhibit 6
for identification is admitted.
Was that package addressed to anyone?
To me, Mrs. Bailey.
What does it say?
To Mrs. Bailey.
What address?
1718 Pittsburg, Tacoma, Washington, 98408.
Was the package postmarked?
Yes.
What is the date of the postmark?
March 7.
OPO Pr
OPO POS
PO PO PO PO PO
22
Q Is there a location from which the package was
mailed on the postmark?
A Spokane, Washington.
Q Is there a return address on that package?
A Yes.
Q What is the return address?
A 1758, I believe that is Lee Street, Spokane, Wash-
ington.
Q Mrs. Bailey, you are testifying that is the same
—< you received on March the 13th, 1973?
Yes.
MR. CRUM: That’s all I have with respect to that
package.
Q Did you ever open that package?
{29} MR. MOBERG: Just one moment. Let me see
the package.
THE COURT: Mr. Crum, it is almost noon. When-
ever it is a convenient and logical place to break—
MR. CRUM: I think now would be logical, your
Honcr.
' THE COURT: We will recess for lunch, until 1:30.
And again I admonish the jury that they are not to talk
about the case or to discuss anything about it because
you have not heard all of it yet, so Mr. Bailiff, would
you retire the jury, and please report back to your jury
room by 1:30.
(Jury out at 12:00 o’clock noon.)
THE COURT: The court will be in recess until] 1:30.
23
{80} (Jury in at 1:39 p.m.)
THE COURT: You may continue.
DIRECT EXAMINATION (Continuing)
BY MR. CRUM:
Q Mrs. Bailey, I believe we left off when I asked you
whether or not you ever saw the contents of that sec-
ond package.
A No.
And you did not. Did you know anyone who re-
sided at 1753 North Lee in Spokane?
A No, I do not.
Q Do you know Josephine Powell?
A No.
Q Had you made any arrangements with anyone to re-
ceive either of these two packages that you testified to?
A No, I did not.
Q During that time have you received any other pack-
ages from anyone in Spokane?
A No.
[31] MR. CRUM: I believe that is all I have for
now, your Honor.
CROSS EXAMINATION
BY MR. MOBERG:
Q Mrs. Bailey, you have three children, is that cor-
rect?
A Yes.
Q Are these children from your marriage to George
Bailey?
A Yes. :
Q These children are living at home?
A Yes.
Q The youngest one is three?
A Yes.
Q You say that you are unemployed. Have you worked
at any time, say, in the last two years?
24
No.
You have been a housewife at home?
Yes.
How long have you lived with your husband?
Seven years—well, seven years in August.
And the last time, am I correct, I assume the last
time you lived with him was October of 1971?
A Yes.
Q And he has been in either Lompoc or McNeil Is-
land since then?
A Yes.
[82] Q Now, how many months has your husband been
in McNeil Island?
A Since July of ’72.
Q A little over a year?
A Yes.
Q During that time you have visited him quite fre
quently, is that correct?
A Yes.
Q Now, you stated I believe in your direct examina-
tion that you received a package, which we will call the
first package.
A Yes.
Q On February 28, 1973.
A Yes.
Q And you are certain that is the date you received
OPpOror
A Yes.
Q And it couldn’t have been the 27th, or the 5th of
March, it was on February 28, 1973?
A Yes.
Q How are you certain that was the date?
A Because it was on a Wednesday.
Q How are you certain it was a Wednesday?
A Because I had gone somewhere, I can’t remember
exactly where I was at, and I was waiting for my check.
It comes on the Ist.
[33} Q Because you were going somewhere and your
check comes on the Ist. You are certain you received
the package on—
A Yes.
25
Q Now, had you either on this morning or yesterday
afternoon or any time in the last couple of days met
with Mr. Crum and talked about this case?
A Yes.
Q And did you meet with some of the other witnesses
in this case?
A Yes.
Q And did they refresh your memory as to dates or
anything like that, or supply you information of what
they thought were the dates, or what happened?
A No. Mr. Crum talked to me about it.
Q Was Mr. Crum attempting to refresh your memory
so that you would remember these dates?
A He asked me if I remembered these dates.
Q Now, you understand I am not making any—
trying to suggest anything of Mr. Crum or yourself or
anybody, but you realize that my client, the defendant
in this case, is charged with a serious crime?
A Yes.
Q And you also realize that your testimony plays a
big role in this charge and her innocence of her guilt?
[34] A _ Yes.
Q And it is important that you testify to what only
you remember, what you observed, and not what someone
might have told you that you subsequently remember
as being the truth, do you realize that?
A Yes.
Q Do you also recall about the visit that I had with
you a couple of weeks ago in Tacoma?
A Yes.
Q And I was there and you were there, and I be-
lieve there was one other gentleman there, is that cor-
rect?
Yes.
What was his name, by the way?
James Finney.
James Finney?
Uh-huh.
POP Pp
26
Now, do you recall that I asked you the question
on the 28th, what date you may or might have received
a package?
A Yes.
Q And do you recall what your answer was?
A I said I didn’t quite remember the dates because
I was trying to forget all this.
Q Would it be fair to say from that conversation you
didn’t remember any dates at all?
[35] A Well, at the time I didn’t, no.
Q But now you are certain that February 28th is
the date you received it?
A Yes, because after I have gone through this and
been thinking about it by myself, then I remembered.
Q Now, this first package that you received, what
was the first thing you did when you got the package?
Opened it after I signed for it.
Opened it right away? |
Yes.
Your testimony is that it was from Spokane?
Yes.
How did you know that?
Because it was on the corner of the box.
What was on the corner of the box?
Spokane, and the address that I can’t remember.
At that point did it strike you as curious that you
were receiving a package from Spokane?
OPO POPO PO pS
Q On opening it, you found some contents in that
package, is that correct?
A Right.
Q What do you recall was in that package?
[36] A Two shotguns, shells, and hacksaw blades.
Q Two shotguns, shells, and—
A Two shotguns, the shotgun shells, and the blades.
Q Now, that was what time of day on the 28th of
February that you received this package?
A In the afternoon.
Se intl
27
Q And that was a Wednesday?
A Yes.
Q What is the next thing you did after you opened
the package and saw the contents?
A Closed the box and put them in my closet. I
picked up the wrapper and thréw it in the garbage.
Q Why did you put it in your closet?
A Because of my children.
Q You closed the box and put it in the closet, that
was sometime in the afternoon, and then what did you
do?
A I waited for two days.
Q You just waited for two days?
A Uh-huh.
Q You received this package that contained these
items that you weren’t expecting, and from someone you
didn’t know, and you put them in your closet and waited
for two days?
A _ I wanted to talk to my husband before I did any-
thing about it because I didn’t know what it was meant
for.
[37] Q Why did you want to talk to your husband?
Because I thought maybe he sent them.
Are you positive that he didn’t send them?
No, because he swears he did not.
You didn’t call Mr. Hicker at that time, did you?
No.
And you didn’t call Mr. Byrd of the FBI?
No.
Or any local authorities?
No.
At that point did you think your husband had sent
them to you?
A I thought maybe he had sent them, yes.
Q Why did you think that?
A Because they were there and that was the first
thing that came to my mind, that maybe he sent them.
I didn’t know.
OPOPOPrPO Poy
28
[88] Q Now, it was also your testimony that you did
not know the defendant in this case, Josephine Powell?
A No, I don’t.
Q@ And you have never seen her before?
A No.
Q And you had nothing to let you know or any kind
of tip-off or indication that you were going to receive a
package like that?
A No.
Q It just came out of the blue?
A Right.
[46] A _ I got a phone call from a woman saying that
I was to—
Between 2:30 and 4:00 o’clock.
How do you remember that it was between 2:30
and 4:00 o’clock?
[47] A Well, it was right after I got home and there’s
a program I watch on TV, that I watched.
Q Right after 2:30. From 2:30 to 4:00 o’clock, that’s
several hours.
A Maybe it was closer to 4:00 o’clock, 3:30 or 3,
somewhere in there.
Q Do you have any idea when that phone call was
made?
A Not exactly, no.
Q But you’re certain it was between 2:30 and 4:00
o’clock?
A Yes.
Q It could have been a minute after, say 2:35 or 2:40,
and you don’t know?
A _ I don’t know.
Q Just a moment. Did you get a phone call?
A _ I got a phone call, yes.
Q You know it was from a woman?
A Yes.
Q You are certain about that?
A Yes.
Q It couldn’t have been from a man?
A No.
Q What time?
A
Q
29
What day was this?
The 9th.
You are certain about the date?
Yes.
Why are you certain about the date?
Because of what was said on the phone.
Because of what was said on the phone?
When she called me.
Now, would you tell us what was said on the phone.
Did they say hello, this is March 9?
A No, because I had just come back from seeing my
husband.
A And that was how you remember it was March the
9th?
[48] A Yes.
Q You previously testified there was some discussion
on the telephone.
A Yes.
Q What was that discussion?
A She asked me if my name was Theresa Bailey, and
I said yes. She said I was getting another package, it
was a mistake, I was to take the first one to Sally, and
I told her—
ODPOPO PO PO
* * . -
[52] Q So what did you do after you received this
phone call?
A I called Mr. Hicker.
Q You called Mr. Hicker. He didn’t call you again?
A No, I called him.
Q And what did you tell Mr. Hicker?
A That I had just got a phone call from a woman
and I was supposed to be getting another package and I
was supposed to take the first one to Sally, or something,
and he told me I would not be getting a second package,
and that they already had it.
Q Whois he?
[53] A Mr. Hicker.
Q In your phone conversation he said you wouldn’t be
getting another package?
A He said they had already got it, they had already
stopped it.
30
Q Who had already got it?
A The postal, or people—he didn’t say. He just said
I would not be getting the other package.
Q That was on March 9?
* a * *
[54] Q If I am correct, in your testimony you found
out that [55] you were going to receive another package
and from this phone call, and immediately you called Mr.
Hicker and found out he already knew?
A Uh-huh.
Q Did you receive the second package?
A Yes.
Q How was that package delivered?
A It was on the 13th of March, that square package
there.
Q How did it arrive.
A By the postmaster.
Q It was on the 13th of March?
A Yes.
Q Is it fair to say you became absolutely certain of
that date?
A Yes.
Q Would it be fair that you became certain of that
date since I talked to you a couple of weeks ago?
A Yes.
Q You weren’t sure a couple of weeks ago what that
date was.
A I couldn’t remember, no.
[60] Q So in subsequent visitations you might have
had with your husband, did you discuss this matter that
happened between the 28th and the 13th?
A Do you mean all of this?
Q Did you discuss this whole incident after that, or
did you forget about it, or let it pass?
A No, we didn’t discuss all of it. We had dis-
cussed some of it.
Q At any time had you discussed plans of escape
~ _ husband?
0.
31
Q Had he ever discussed them with you?
A No.
Q Did you ever make any comment in your visita-
tions, before or after this time, that there was some-
thing going on in the prison?
A No.
Q That you were going to receive some packages?
A No.
Q Or that he would like to try some escape method?
A No.
Q You are certain about that?
A Yes.
Q Do you recall a discussion two weeks or close to
two weeks ago?
[61] A Some of it, yes.
Q Do you recall at that time—strike that. At that
time did you make any statement to me about possible
escape plans?
A I didn’t say he made escape plans. I remember
what I said to you.
Q Would you tell me what that was?
A I told you there was supposed to be some saw
blades sent to me, but that was it, no further discussion
about it. That was way before this happened.
Q I appreciate that, way before. How long?
A Two or three or four weeks.
Q And your husband made some comment to you
that you were going to receive some blades?
A He asked me if I would take them, and I said
no, and there was no further discussion about it.
Q That was two or three weeks before this?
A It was along in there before this ever broke out.
Q Did he just bring this up in the blue, that one
time?
A No.
Q That was all that was said?
A No.
Q Didn’t you inquire, weren’t you curious at that
time?
A No.
32
Q Did he ever talk to you about it subsequently?
[62] A No.
Q Did you bring up that discussion you had that four
weeks ahead of time, with him at the time you received
the first package on the 28th?
A No.
Q You waited until the 38rd. You waited until you
talked to your husband before you did anything, is that
correct?
A (No answer)
Q At that point did you discuss this or other com-
ments he made to you?
A No.
Q And it didn’t even stick in your mind?
A No.
* *
Q Now, back to these phone calls on the 9th, was
that the only phone call you received in regards to this
incident?
A No, I got some on the 14th that were threatening.
Q You got threatening phone calls on the 14th. By
a man or a woman?
A Man.
[63] Q How many?
A Three.
e a you know where those phone calls came from?
0.
Q Were there any other phone calls?
A Just off and on.
Q All these phone calls were in three days?
A Yes.
Q They were by a man?
A Yes.
Q And this one call in the night, and these three
calls from a man on the 14th or something like that—
A The 14th.
Q — there any instructions in those phone calls?
0.
Q Did you report those phone calls to the FBI?
A Yes.
Q Now, these were made by a man.
A Yes.
Did that man identify himself?
No.
Did he know you?
Yes.
Did he call you by your first name?
Yes.
Q Or did he ask you, is this Theresa Bailey?
Theresa Bailey.
So he knew you?
Yes.
>rO>E Popo ro
[72] Q You said you have relatives in Spokane, is
that correct?
A Yes.
Do you ever phone them?
A I don’t even know who they are because I was
just little. And they were relations.
9 Did you ever make any phone calls to Spokane?
A Not that I know of.
Q For example, say in the last—since the first of
the year, would there appear on your phone bills any
phone calls from you to Spokane?
A Not that I know of.
Q For example, say in the last—since the first of
the year, would there appear on your phone bills any
phone calls from you to Spokane?
A There might have been.
Q Who might they have been to?
A I don’t remember the phone number.
Q Did you make some calls to Spokane, though?
A I believe I made one, but the people weren’t home
and I don’t remember the number or the people.
Q You just called Spokane out of the blue?
A Yes.
Q Did you ever talk to anybody in Spokane?
A The people I was supposed to talk to weren't
home, so I never—
Q It showed up in your phone bills, did it not?
A Yes.
[73] Q Unless you talked to somebody it wouldn’t
show up in your phone bill. Your testimony is that you
34
made a phone call to Spokane. When was this phone
call made?
A_ I don’t remember.
A I don’t remember, I just remember there was one
made.
You made one call.
Maybe two.
Maybe two phone calls to Spokane?
I don’t remember, two, somewhere in there.
Would it have been in the wintertime?
I guess so.
Would they have been in January?
I can’t remember.
Do you have your phone records with you?
No.
So you made maybe two phone calls to Spokane?
Uh-huh.
And those phone calls showed up in your bill but
didn’t talk to anybody?
I didn’t talk to the people, no.
Q You talked to somebody?
A I talked to somebody but the people I was sup-
posed to [74] talk to weren’t home.
Q Do you remember why you were calling?
A No. A message that McNeil wanted to see some-
body there.
Q McNeil wanted—
A That their husband wanted to see them at McNeil.
Q Whose husband?
A I don’t know. I don’t remember the name. I just
threw it away.
Q Who gave you the message, her husband?
A Yes.
Q When you were visting?
A I called them to tell them her h-sband wanted to
see them, that was all.
Q Was there any discussion that you had on the
phone other than that?
©
FE OPO POPO PO POY
yo
>
35
A No. You know, this person isn’t here, and goodby.
Q Was there any discussion about some papers or
anything like that?
No.
As you recall there were two phone calls?
Yes.
To people you didn’t know?
I don’t know.
And you don’t remember when?
I don’t remember when, either.
Q And you didn’t talk to the people anyway?
No, they weren’t home.
Your husband asked you to call them?
Yes.
It was sometime in January?
I don’t remember what it was. I threw it ali
POP Po >
—_
~j
or
beamed
Did you do anything else at your husband’s re-
in terms of dealing with people in Spokane?
No.
Do you recall the phone number?
No.
Was it a call to Josephine Powell?
No.
You didn’t know her, did you?
No.
So it was a call to somebody else?
T can’t remember the name.
You don’t remember the name?
No.
And you just had to give them a message to be
~
oporerororergos pope>
at McNeil Island?
A Yes.
And that was all?
A That’s all.
Q Are there phone privileges out of MeNeil Island,
can [76] they call out?
A Yes.
Q Did your husband tell you why you should do this
instead of someone calling from the Island, to tell them
to come and visit?
36
A No. He said call and I said I can’t see any harm
in calling. I was to tell them their husband wanted to
see them.
Q You were just doing this—
A As a favor.
Q You might have called them twice? Have you called
them any more than twice?
A No, I just threw it all away.
Q The two phone calls were not in the same day?
A Yes.
Q And you called and then you called back again
on the same day?
A No—yes.
Q Either time did you get the person you wanted to
talk to?
A Not the person I wanted to talk to, no.
Q But you did get somebody?
A_ I got somebody.
Q Did you have any further discussion or any dis-
cussion at all with your husband about doing errands
for him [77] or doing things for him, or supplying him
with any tools?
A No.
Q Except the one in February?
A No.
Q Did he indicate to you that anything was going
on at that time inside the prison?
A No.
Q He just out of the blue thought if you would
happen to get some hacksaw blades you would bring
them in?
A Yes.
[78] REDIRECT EXAMINATION
BY MR. CRUM:
Q Mrs. Bailey, as you recall on direct examination
I asked whether or not you had any friends or relatives
in Spokane.
A Uh-huh.
OTT, OT 7G,
a TEI IT al cae
37
Q Do you recall that?
A (No answer)
Q And your answer was that you had some relatives
but had not had any contact with them since you were
a young child, is that right?
A Yes.
Q_ In cross examination, Mr. Moberg referred to some
telephone calls made by you to someone in Spokane.
You made how many phone calls?
A I forgot about those until he asked me.
How many phone calls did you make?
[79] A Two, I believe.
Q You don’t recall the name of the party you were
calling?
A No.
Do you recall whether or not it was the wife of
one of the fellows in the institution with your husband?
A I can’t even remember the name of it.
Q What was the message that your husband gave
you?
A That somebody wanted them to come over and see
them.
So you were calling a wife. Do you know whether or
not it was a wife?
A No, I don’t know.
Q Or a daughter?
A I remember I had a name but I threw all of that
away. I can’t even remember what it was.
Q Was it a man or a woman you were trying to
contact in Spokane?
A I talked to a woman I believe.
Q Who were you trying to contact, a man or a
woman?
A I was supposed to be talking to either one, I
believe.
Q Who in fact did you talk to?
A A woman.
Q What did you tell her?
A That she was wanted, there was a visit to be over
at McNeil.
38
Q Why did you make a second phone call?
[80] A The first one they weren’t home.
Q Who was it that answered the phone?
A A girl, I believe.
Q You asked for a certain party and they said
that this party was not there?
Yes.
You didn’t leave a message at that time?
No.
And you called back the same day?
Uh-huh. |
Q On that occasion did you get in touch with the
party you were trying to get in touch with?
A Yes.
Q And do you recall whether this was a man or a
woman?
A I don’t remember.
Q And you gave them what message?
A They wanted to visit over at McNeil.
Was there any discussion during the course of the
phone call about hacksaw blades or shotguns or an
escape plan?
A No.
And you made, to the best of your recollection, no
other phone calls to Spokane?
A No.
Q All right. Did you or have you discussed with
anyone other than the references you have made to the
discussions [81] with your husband, about an escape
plan at McNeil Island?
A No.
Q You were not part of an escape plan?
A No.
Mr. Moberg has indicated on cross examination
that all of a sudden you received some telephone calls
out of the blue from Mr. Hicker. Now, as I recall, you
testified that after you received this first package you
went to see your husband at the institution?
A Yes
Q You inquired of him at that time whether or not
oe * any knowledge of the contents of this package?
es.
POP P
39
Q And his response was he did not?
A Yes.
Q During the course of your conversation with him
then, did he advise you to contact Mr. Hicker, or did
the name Mr. Hicker come up during the course of this
conversation?
It did.
How did it come up?
He brought it up, I didn’t.
In what way did he bring it up?
That he would go up and talk to Mr. Hicker about
PO POP
it.
Q And did he then indicate that Mr. Hicker would
get in touch with you?
[82] A Yes.
Q What was it specifically that he was going to talk
to Mr. Hicker about?
A Tell him that I received the package with the gun
and blades and bullets in it.
Q Your husband did not indicate to you either at
that time that he was part of a plan to escape from
McNeil?
A No.
MR. MOBERG: Objection.
THE COURT: Sustained.
MR. CRUM: I don’t know, your Honor, I think that
is a proper question. I think counsel has opened the
door.
THE COURT: The subject matter is all right but
it’s the form of the question.
MR. CRUM: All right.
Q Did your husband indicate to you during your
conversation that he had any knowledge of an escape
plan from McNeil Island?
A No.
Q Or did he indicate to you that he was part of an
escape plan?
A No.
Q Now, have you ever given your telephone number,
which I understand was a listed phone number on
March the 9th, [83] 1973, is that correct, was it listed?
A Uh-huh.
40
Q Have you given that number to anyone for the
purpose of facilitating any type of an escape plan?
A No.
Q You are fairly certain of the date you received
the package, the second package, that is, because I be-
lieve you testified that you initialled that package when
you received it, is that correct?
A Yes.
Q And you had some telephone calls with Mr. Hicker
from March the 9th up through March the 13th, is that
correct or incorrect?
A Did I have some?
Q Did you have at least one phone call?
A Yes.
Q During that period of time did you have perhaps
other phone calls from Mr. Hicker during that period
of time?
A I don’t believe so.
Q You don’t recall?
A No.
Q Could there have been other phone conversations
you had with Mr. Hicker during that period of time?
A I don’t believe so.
MR. CRUM: I believe that is all I have.
[87] DIRECT EXAMINATION
BY MR. CRUM:
Q Mrs. Bailey, following your testimony just a few
moments ago, you and I met in the hall, did we not?
A Yes.
Q And we had some discussion at that time about
these phone calls you testified to that you made to Spo-
kane, is that correct?
A Yes.
Q Now, have you previously at any time mentioned
to me the fact that you had made any phone calls to
Spokane?
A No, not before I met you out in the hallway.
sec Pc A —
41
Q You testified previously that those phone calls were
made to parties in Spokane whose names you do not
remember. Now, is that testimony true?
A No.
Q What in truth was the fact, the message that you
delivered to someone in Spokane?
A The message was that they were supposed to order
one dozen escape and invasion blades and close-wound
pipes, and I hung up and threw it away.
[88] Q Where did you get the message from?
A My husband.
Q Do you recall who the party in Spokane was that
you were to talk to?
A No, I don’t really. I can’t remember names.
Q You can’t remember names. How many phone calls
did you make?
A _ I made three from my home, two of them I couldn’t
reach the party and the third I got the lady and I told
her I would make a phone call from the booth, the tele-
phone booth.
Q Where was the phone booth?
A 56th at a gas station close to my home.
Q When you made the phone call from the booth,
was it to the same number?
A Yes.
Q Was it to a lady?
A Yes. One dozen escape and invasion blades and
close-wound pipe, and I gave her an address. I can’t
remember it, and hung up and that was it.
Q Now, you hadn’t told me that before, had you?
A No.
Q Is there anything else you have testified to that
has not been truthful?
A No.
[89] Q Did you know anything about those two pack-
ages that you received?
A No, I did not.
Why didn’t you tell us the truth about the phone
calls to Spokane?
A I don’t know, I got scared I guess, nervous.
42
Q All right. Outside of the discussions you had with
your husband about the hacksaw blades and the telephone
calls you made, have you had any other discussions at
all about hacksaw blades and possible escape or evasion
blades or anything at all?
A No, sir.
Q You are telling the truth now?
A I am telling the truth. I swear to God I am
telling the truth.
MR. CRUM: That is all.
THE COURT: Further questioning?
CROSS EXAMINATION
BY MR. MOBERG:
Q Mrs. Bailey, after your testimony you left the
hall and it is my understanding you then talked to
Mr. Crum again?
A Yes.
Q And did you, on your own, come out and say to
Mr. Crum that you told me some things that were not
true?
A Yes.
[90] Q And did he advise you we should go in and
correct those things?
A Yes.
Q Now, you have—
THE COURT: Excuse me just a moment. Can you
not hear the witness?
JUROR NO. 5: We are having trouble hearing.
MR. MOBERG: You will have to keep your voice up.
Q So the truth now is that you did make the phone
calls to Spokane?
A Yes.
Q And you don’t remember who they were to?
A No, I don’t.
Q And you said order some one dozen escape and
evasion blades?
A Yes.
Q What is an escape and evasion blade?
A Ido not know.
43
@ a your husband tell you what they were?
0.
Q Escape indicates escape, doesn’t it, used for some
kind of escape?
A I suppose, but I didn’t know what they were.
Q Your husband didn’t explain it to you when he
told you?
A No.
[91] Q When was this?
A I don’t remember when it was.
Q Did he tell you this around March 9th?
A No.
Q It was before March?
A It was earlier. I don’t remember when exactly.
Q February?
A I can’t remember because I don’t even remember
when I made the phone call.
Q These phone calls were made as a result of one
discussion you had with your husband and he told you
to make these phone calls?
A He asked me if I would make the phone call and
I made the phone call.
Q The same day?
A I believe—yes, it was. It was in the evening when
I made the phone call.
Q Did he supply you with the name and the number
and what to say?
Yes.
Did you ask him about it?
No.
Just seemed like the normal thing to do?
I don’t know what they were.
Did you have any idea what they were?
A No.
Your husband was then in the penitentiary and he
asked for escape and evasion blades?
A He didn’t ask for them for himself. It was for
somebody else.
Q He asked you to order them?
A He asked for somebody else to order them, not
for me. I don’t know what escape and evasion blades
are and I still don’t.
OROPoOPo>
44
Q You had some idea though?
A No.
Q No idea at all?
A No.
Q You knew they weren’t shaving blades?
A Yes. ;
Q It wasn’t a commodity like something you might
shave with or deodorant or something like that?
A No.
Q And he had you call to Spokane to get them?
A Yes.
Q And knowing those things, you still don’t have any
idea what they were or what he intended to do with
them?
A No, he did not tell me.
Q You figured, okay, I’ll call these people and have
them put in the order?
[93] A Yes.
Q And your testimony still is that you had no part
in any plan of escape?
A That is right, I had nothing to do with it.
Q Now, Mrs. Bailey, I don’t want to appear to be
picking on you, and I am not, but I want to get to the
truth, and you understand how important the truth is
to my client.
A Yes.
Q If you don’t like the method that I am asking
you questions, if you think I am being unfair with you,
just tell me. But I just want to get the real truth of
the matter.
A I understand.
Q Would you like a drink of water?
A No.
Q You did have one discussion about escape with
your husband on this date that we cannot pin down,
in February and about some blades. Was that at the
same time he told you to order the escape and evasion
blades?
A That was after.
45
Q In other words, you ordered them, or you made
these phone calls, and later you talked to him again,
you talked to him twice about blades?
A He didn’t talk to me about blades. He asked me
to make [94] a call. He said something about escape
and evasion blades, and we didn’t talk about it any
more.
Q You talked to him a second time?
A Yes.
Q Didn’t he tell you if you should receive some blades,
would you bring them in to McNeil Island?
A Yes.
Q At no point you told him you would?
A Right.
Q What was the time length then between those two
discussions?
A I don’t remember. I honestly don’t remember.
Q It wasn’t anything that you would want to re-
member, is that it?
A Right.
Q It is something you would like to forget?
A Right. I would like to forget the whole mess.
Q I sincerely believe that, but the point is you try
to remember as best you can.
A Iam trying, but I cannot remember.
Q Now, what was this discussion in this message
about papers?
A What do you mean?
Q As I understand your testimony to Mr. Crum
was that your instructions were to call someone to order
escape [95] and evasion blades and closely wound pipe.
A Closely wound pipe, and they gave me an address.
Q Was that “work closely around pipe,” was that
describing the blades?
A I don’t know. That is just the way the message
was given, and I gave it the way it was given to me.
Q Was that message given to you?
A No, it was the way my husband gave it to me.
All I had was the address.
Q Was the address written?
A Yes.
46
Q And the phone call and the phone number?
A The phone number of the people, yes.
Q He didn’t tell you who you were going to call?
A It had the name on it but I don’t remember it.
Q You placed two calls to no avail?
A I made two, and one that I got ahold of her.
Q The one you got ahold of her, you made from the
one booth?
A I made two that weren’t available, the third one
I got her, and told her I would go to a phone booth
and make the call.
Q I see. At that point, at the point you had this
discussion with your husband, did you believe or have
any indication to believe that your husband was in-
volved [96] in an attempt to escape?
A No. Why should he escape when it’s almost time
to come home.
Q Did your husband tell you or give you an indica-
tion of why he wanted you to pass this message along?
A No.
Q Now, as best as you can, Mrs. Bailey, reviewing all
the other testimony that you have yiven today, is there
anything else that you want to change your mind on?
A No.
Q You are still going to remain certain on the dates
that you have given me?
A Yes.
Q And the time?
A Yes.
Q And the circumstances?
A Yes.
Q And the only thing you told me that wasn’t true
was these things about Spokane, the phone calls?
A Yes.
Q Now, one other thing I would like to clear up.
These phone calls you made, you made a total of four.
Were they all made to the same person?
A Yes.
Q You didn’t call more than one person?
[97] A No.
Q Did you talk to more than one person?
ph
47
A Like I said, when somebody answered the phone I
asked for the person and they weren’t there and I hung
up.
Q The first two calls that is what happened, they
weren’t there and you hung up?
A Right.
Q Did you ever have any discussion other than who-
ever this person is, there?
A That was it.
Q You didn’t pass the message on?
A No, I did not.
Q The third time did you get ahold of the person?
A I got ahold of the person I was supposed to get
ahold of and I told her I would call her back in a minute
from a phone booth.
Q Did that person answer the phone or someone else
answer?
A She answered.
Q You said hang on, I'll call you back from a phone
booth or something like that?
A Yes.
Q So the message you passed, you talked to only one
person and you talked to another person and hung up,
is that right?
A Yes.
[98] Q These were all the same phone number?
A Yes.
Q You made no other phone calls to Spokane to any
cther number at any time?
A No.
Q And your further testimony in cross examination,
you testified, and I want to clear it up, the phone call
you’re talking about Spokane, that phone call was not
made to Josephine Powell, was it?
A No.
Q And you don’t know Josephine Powell?
A No.
Q Is this the first time you have seen Josephine
Powell?
A Yes.
MR. MOBERG: I believe that is all.
48
REDIRECT EXAMINATION
BY MR. CRUM:
Q You don’t recall the name of the person that you
called?
A No, I don’t.
Q Now, you testified that you don’t know what escape
and evasion blades are.
A Right.
Q But you are not telling us are you, Mrs. Bailey,
that you didn’t connect that with some sort of an escape
plan?
[99] A No, I swear to God I don’t know what they are.
Q But did you assume it had something to do with
escaping from the penitentiary?
A No.
Q You didn’t even assume that?
A No.
MR. CRUM: Okay.
RECROSS EXAMINATION
BY MR. MOBERG:
Q One other question now. This is important, so I am
going to try to make sure it is perfectly clear. You
testified the person you called was not Josephine Powell?
A Right.
Q How did you establish that it was not Josephine
Powell?
A Because it wasn’t—because I can remember it
wasn’t her name.
Q The name that you can’t remember, you are sure it
wasn’t Josephine Powell?
A Right.
Q But it wasn’t—it might have been some other name
but it wasn’t Josephine Powell?
A That is right.
MR. MOBERG: That is all.
Again, I would like to keep this witness.
A
49
THE COURT: You are to remain in the witness
room, [100] Mrs. Bailey.
(Witness excused. )
[TESTIMONY OF GERALD B. HICKER]
GERALD B. HICKER, called as Plaintiff’s witness,
being first duly sworn, testified as follows:
BY THE CLERK:
Q Will you please state your full name for the jury
and the Court, spelling your last name.
A Gerald B. Hicker. (Spells)
DIRECT EXAMINATION
BY MR. CRUM:
Q Mr. Hicker, what is your address?
A Box 250, Steilacom, Washington. I reside on
MeNeil Island proper.
Q What is your occupation?
A I am a Correctional Supervisor.
Q At McNeil Island Penitentiary?
A Yes.
Q How long have you beet a correctional supervisor?
A I have been a correctional supervisor since 1963,
but I have been employed by the Bureau of Prisons for
approximately twenty-three years.
Q How much of that time have you spent at McNeil
Island?
A About fifteen years—fourteen cr fifteen years,
two different times.
Q Just basically what are your duties as correctional
[101] supervisor?
A Iam the correctional supervisor assigned to inves-
tigation with the scope of duties involving major vio-
lations of regulations to any crimes against the govern-
ment on McNeil Island proper, or to any inmate there.
50
You work within the institution itself?
Yes, sir.
Are you acquainted with Mrs. Theresa Bailey?
Yes, I am.
In fact, have you seen Mrs. Bailey in and about
the courtroom this morning and this afternoon?
A Yes, I have.
Q How is it that you happen to know Theresa Bailey?
A I met Theresa Bailey in the institution’s visiting
room some months ago. Her husband introduced her
to me.
OPO pO
Is her husband an inmate in that institution?
Yes, sir.
At McNeil Island?
Yes, sir.
What is his name?
George Lynn Bailey.
Do you know Mr. Bailey personally?
Yes, sir, I do.
And you know Mrs. Bailey personally?
[102] A Yes, sir, I do. ;
Q And do you know approximately how long Mr.
Bailey has been an inmate at McNeil Island?
A Bailey came to McNeil Island on July the 23rd,
1972 in a transfer from the Federal Correctional Insti-
tution at Lompoc, California.
Q I believe you mentioned you met Mrs. Bailey some
months ago?
A Some months ago, yes.
Q Directing your attention to the first part of March,
1973, did you on that date have occasion to meet with
Theresa Bailey?
A Yes, on March the 3rd, 1973 I met with Mrs. Bailey
at the parking lot at the Tacoma Mall, in reference to
a package that she had received in the mail.
Q On March the 3rd you met with her?
A On March the 3rd I met with her at approximately
4:40 p.m.
Q Had you had any telephone -onversations with her
prior to meeting with her personally?
OPrPOPOrO PO
———— ' ‘
51
A Yes, I telephoned Mrs. Bailey at approximately
2:40 p.m. that afternoon from the home of the FBI
Agent Byrd, asking her to meet us at the Tacoma Mail
in reference to the package she had received.
What occasioned your phone call to Mrs. Bailey?
[103] A _ I was informed that she had received a pack-
age in the mail which contained firearms, ammunition and
hacksaw blades.
Q How many phone calls did you have with Mrs.
Bailey, or phone conversations prior to meeting with her?
A On March the 3rd I had one phone call with her,
personally.
Q All right. And then you met with her again on
March the 3rd?
A Yes, at 4:40 p.m.
Q Okay. And was anyone with you at that meeting?
A FBI Agent Randall Byrd.
Q Where did the meeting take place?
A In the parking lot at the Tacoma Mall on South
48th and Oak Streets. |
Q Why did you happen to select, or why was this
particular place selected for the meeting?
A This place was selected by FBI Agent Byrd because
of its location, and that he did not feel, nor did I, that
we should go directly to the home of Mrs. Bailey.
Q When you saw Mrs. Bailey on this occasion did she
appear to you to be upset?
A She was extremely, visibly upset. She had a very
hard time talking, sir.
What if anything took place during the course of
this [104] meeting?
A We talked to Mrs. Bailey briefly, and FBI Agent
Byrd informed her that if she received any further—
MR. MOBERG: I’m going to object to him testifying
what Agent Byrd said.
THE COURT: Sustained.
Q Was there some discussion with you and Mrs.
Bailey about what you had discussed on the telephone?
A None other than having her informed that she
should notify us if she received any further packages or
information or telephone calls relevant to the packages we
already had.
52
Q What did this telephone conversation you had on
March the 3rd relate to?
A The telephone conversation on March the 3rd re-
lated tu the fact that she had received in the mail a
package which contained two shotguns, one full box of
12 guage ammunition, one partial box of 21 rounds of
' ammunition, and 34 hacksaw blades.
Q You met with Mrs. Bailey. Did she have the pack-
age that you and she discussed?
A Yes, she did.
Q This was on March the 8rd at the Tacoma Mall?
A Yes, sir.
Q What did she do with that package?
[105] A She turned it over to Mr. Byrd in my pres-
ence. She had it in the back seat of her car and took it
out and gave it to Mr. Byrd in my presence.
Q Can you physically describe the package itself?
A Yes, it was a cardboard container, light in color.
It was approximately three feet long. Maybe eight or
ten inches wide. Two or three inches in depth.
Q Was there any wrapping paper around it?
A I don’t believe—there was no wrapping paper, sir.
Q Did you make an inquiry of Mrs. Bailey at that
time relative to the presence or absence of wrapping
paper?
A I made an inquiry at that time and an inquiry
earlier, sir, to Mrs. Bailey as to the wrapping, and she
said she had placed them in a garbage can, sir, at her
home.
Q Now, showing you what has been marked for iden-
tification as Plaintiff’s Exhibit No. 2, can you tell me
whether or not you recognize that exhibit?
A I recognize this exhibit as the Ulysses Magnum
double-barreled shotgun that was made in Spain, a very
beautiful shotgun. I recognize this as a shotgun that Mr.
Byrd took the serial number from.
Q How do you recognize it as being that shotgun?
A Right here, on the foremount of the barrels. It is
a Ulysses Magnum made in Spain with some very fancy
markings right here at the forehead of the barrel. It
[106] was a very beautiful shotgun, sir.
53
Q Did you initial that?
A No, sir, I did not examine it any more than nec-
essary because we wanted to maintain any fingerprints
if there was a crime committed with this.
Q Did you take down the serial number off that, your-
self?
A I did not, but I observed Mr. Byrd take the serial
number.
Q Do you recall what it was?
A No, sir, I do not recall.
Q You do not have any particular markings on that
weapon, to know what the number is?
A No, sir, I do not.
Q So you want to definitely state that is the exact,
the same item you saw on March the 3rd.
A Not exactly but is is an exact replica, sir.
Q Showing you what has been marked for identifica-
tion as Plaintiff’s Exhibit No. 3, can you tell me whether
or not you recognize that item?
A This item is exactly as the one removed from the
package. It is a 12 guage single barrel shotgun and
from all indications is apparently brand new. This ap-
pears to be a shotgun.
Q Did you make any marks on that or copy down the
serial number?
[107] A No, sir, I did not. I observed Mr. Byrd take
the numbers from the shotgun.
Q All you can say is that it appears to be similar?
A Similar, yes.
Q To the weapon Mrs. Bailey turned over to you on
March the 3rd.
A Yes.
Q What other items were in that package?
A There were 34 hacksaw blades, sir, and two boxes
of ammunition, shotguns shells.
Did you make any marks on any of the hacksaw
blades or the shotgun shells?
A No, sir, I did not.
Q Would you take a look at Exhibits 4 and 5 there
and tell us whether they appear to be similar to the items
turned over to you on March the 8rd.
|
ee —
SnD Pc TREN ETP TOES EO ERLE EDIE EADIE SLA, TE
54
A This appears to be the full box—the reason I say
that, without opening it, is that I recall it had a Fred
Myers price tag on it. It was apparently a new box.
This appears to be the box of 21—if you desire me to
open them and check, I will, but I believe that is—
Q You wouldn’t be able to tell us for certain those
are in fact the same shells that came out of the package
Mrs. Bailey gave you, could you?
[108] A To the best of my knowledge. However, I
did not mark the package.
Q Would you take a look at the other exhibit.
A (Witness looks at Exhibit 5.)
Q Can you tell us whether or not you have ever seen
that exhibit before?
A These are identical to the hacksaw blades in the
package. I state this by the fact that these yellow ones
here are a very fine shadow—proof blade that I com-
mented on and I recall six blades with the K-Mart price
tag still on them, and there are six blades here with
the K-Mart price tag.
Q But you made no marks on them?
A No, sir, I did not.
Q But your testimony is that Exhibits 4 and 5 ap-
pear similar to the items turned over to you on March the
3rd by Mrs. Bailey?
A Yes.
Q What did you do with these items once they were
turned over?
A They were taken to the home of FBI Agent Byrd,
by Mr. Byrd and myself. The items were carefully looked
at. However, in a manner not to remove any fingerprints.
Mr. Byrd took the serial number of the two shotguns
and from his private home he called his Seattle office and
[109] they ran a check through the NCIC in Washing-
ton, D.C. to see if the shotguns were stolen.
Q Have you had any other occasion up until the pres-
ent time to have any contact with any of these items?
A I haven’t seen these items since, until today.
Q Now, after your meeting on March the 8rd with
Mrs. Bailey, did you have any other occasion thereafter
to again talk with Mrs. Bailey?
55
A Mrs. Bailey called me on the 9th day of March,
1973, and told me that she had received a telephone call
and that a second package was going to or had been
mailed to her.
Q Did you indicate to her at that time that you knew
about this second package?
A I don’t believe that I did indicate to her at that
time that I knew about the second package.
Q Did you indicate to her that you had the second
package?
A No, it would have been impossible to have the
second package. I indicated to her that we could stop the
second package.
Q But your testimony is now that at that time you
had no knowledge other than this phone call of the
second package?
MR. MOBERG: I object to the question as being
leading.
{110} MR. CRUM: All right, I will withdraw the ques-
tion.
THE COURT: I was leading.
Q (By Mr. Crum) All right. Following this tele-
phone call, from Mrs. Bailey, did you have any other
contact with her?
A Yes, on March the 13th Agent Randall Byrd of the
FBI and myself proceeded to the home of Mrs. Bailey
and received a second package that was unopened.
Q What prompted you to go to her home?
A She notified me that she had received the pack-
age.
Q Had you seen this package prior to that time?
A No, sir, I had not.
Then did you in fact, and Agent Byrd, meet with
Mrs. Bailey at her home?
A Yes, sir, we did.
And the date was what?
A The 13th day of March, 1978.
Q Was there anyone else at the residence besides Mrs.
Bailey?
A I believe a couple of her children were home. I
can’t swear to it, but I believe they were.
56
@ When you got to her residence did you observe a
package?
A Yes, sir, we did.
Q Was that package opened or unopened at that
time?
A That package was unopened. ,
[111] Q Did Mrs. Bailey do anything with respect to
this package in your presence at that time?
A Yes, sir, she initialled and dated and timed the
package at the direction of FBI Agent Byrd in my pres-
ence.
Q Then what did she do with the package?
A Turned it over to Mr. Byrd, the FBI agent.
Q Was it unopened at this time?
A Yes, sir, it was.
Q What did you and Mr. Byrd do with the package?
A Mr. Byrd initialled the package at that time. We
took the package to the FBI office in Tacoma, Washington
and we opened the package and we observed inside the
package a sawed-off shotgun and two boxes of shotgun
ammunition. I believe they were Peters-type ammuni-
tion.
Q Showing you what has been marked for identifi-
cation as Plaintiff’s Exhibit 6, can you tell me whether or
not you recognize Exhibit 6?
A Yes, this is the package that bears the initialling
of the package and the date, and timing, in two places
by Mrs. Bailey, and in two places by FBI Agent Byrd.
This was initialled in my presence.
Q Did you initial the package in the presence of the
others?
A I did not initial the outside of the package, no, sir.
[112] Q Is that a package then-—well, your testi-
money is that that is the same package?
A This is the outer wrapping of the package, yes,
sir.
Q That is the package you and Agent Byrd opened in
his office?
A Yes, sir.
Q You indicated when you opened that package you
found the contents of that package to be what?
Nee Ee
57
A One sawed-off shotgun and two boxes of shotgun
ammunition.
Q Showing you, Mr. Hicker, what has been marked
for identification as Plaintiff’s Exhibit No. 7, can you
tell us whether or not you recognize that item?
A Yes, sir, I recognize it very, very well.
Q How do you recognize it?
A Because I, on March the 18th, 1973, in the office of
the FBI, wrote my name on this package. It appears
right here. “G.B. Hicker” in my handwriting.
Q Is it dated?
A Yes, it is dated March 18, 1978, G.B. Hicker, and
I wrote it with a metal stylus, right here.
MR. CRUM: Do you want to take a look at it?
MR. SMITH: (Nods) Yes.
(Bailiff hands the exhibit to opposing counsel.)
MR. MOBERG: I would like to inquire on voir dire,
[113] Your Honor.
THE COURT: You may proceed.
MR. CRUM: I am not moving for the admission
now.
MR. MOBERG: I presume the prosecutor would move
for its admission.
MR. CRUM: I will if Mr. Moberg wants to go ahead
and inquire, I will move now. You may inquire of the
witness.
THE COURT: You may inquire.
a es eee
VOIR DIRE EXAMINATION
BY MR. MOBERG:
Q Mr. Hicker, now is it your testimony that that is
the weapon that appeared in the package that you picked
up from Mrs. Bailey March the 13th?
| A Yes, my name is on it.
Q@ Your name is on one part of it. Was it exactly
| like that at the time you saw it? Was the bolt open?
A I don’t recall, the bolt could have been closed. This
is the weapon I wrote my name on it, sir, on that date.
Q Was the barrel on it?
ee pe eee
58
A The barrel was sawed-off that way because I no-
ticed a poor job of sawing it off.
Q Was it two parts or one part?
A I don’t believe—I believe it was one part. I don’t
recall offhand. This is the weapon.
[114] Q Was any other initialling on it other than your
your initialling at the time you saw it?
A I believe Mr. Byrd initialied the thing at the same
time I did, and I believe shortly before I did. Maybe
a minute.
Q Then did you keep the gun in your possession?
A No, sir, I did not.
Q You left it with whom?
A FBI Agent Byrd.
Q From your own knowledge, except for what some-
one might have told you, now you didn’t observe the gun
transferred from Mr. Byrd’s office to somewhere else?
A No, sir, I did not.
Q You left it with Mr. Byrd, and that is the last time
you saw it?
A Until today, yes, sir. This is the weapon I put
my name on.
MR. MOBERG: I have nothing further. I’m not sure
until we establish the chain of possession that that can
be admitted.
THE COURT: It hasn’t been offered yet, counsel.
MR. CRUM: I will offer it. Are you objecting to
the admission?
MR. MOBERG: We have got to establish how the gun
got in Mr. Hicker’s possession to the courtroom and that
[115] it is the same gun and the same condition and
all the same marking. I don’t think that is established.
MR. CRUM: I think all that we need to show is that
this is the weapon he received on that date.
THE COURT: Usually the matter of tracing the pos-
session is only a means of identification that it is the
same weapon, but this witness has testified he inscribed
his name on the weapon. I can see no possibility that it
could be other than the weapon to which he has testified.
MR. MOBERG: I take it your Honor is saying that
you are overruling my objection.
59
THE COURT: Well, I will listen if there is further
argument. If so, I had better send the jury out, I think.
MR. MOBERG: I don’t believe I have any further
argument.
THE COURT: I’m going to admit the exhibit.
BY MR. CRUM:
Q Now, Mr. Hicker, I am showing you what is marked
for identification as Plaintiff’s Exhibit 8, and I will ask
you whether or not you recognize that, or those items?
A These are the two boxes of shotgun shells that were
in the package that we received from Mrs. Bailey on
the 13th day of March, 1973. I identify them by the date,
[116] 3-13-73 in the corner of each package and the
initials GBH under the date, which is my handwriting,
sir.
MR. CRUM: Okay. Would you care to look at Ex-
hibit 8?
MR. MOBERG: Yes.
(Opposing counsel look at the proposed exhibit.)
MR. CRUM: I will offer Exhibit 8, your Honor.
THE COURT: Is there any objection?
MR. MOBERG: I have a couple of questions on voir
dire, if I may.
VOIR DIRE EXAMINATION
BY MR. MOBERG:
Q Mr. Hicker, there is some other writing on these
boxes.
A Yes, sir, I saw that.
Q Were those writings there before or after you in-
itialled it or could you explain those other writings?
A The initials in the lower left-hand corner on the
same face as my initials that appear in the upper right-
hand corner on both packages I feel very confident is
the initials of FBI Agent Randall Byrd, who initialled
the two packages before I did in my visual sight. In
his office in the FBI in Tacoma. And the other set of—
60
the other set of initials on there were not on there at
that time and I really don’t know whose they are. I
[117] can guess, but I don’t know.
Q You indicated that you recognized those boxes be-
cause of the price tag?
A_ I recognized these boxes my name is on then, sir,
my initials.
Q I thought you said you recognized it because of
some price tag on them.
A I believe that was the last exhibit, not this.
Q Are there price tags on that?
A I find price tags of Fred Myers on here for $4.47.
Q Fred Myers of Portland, is that correct?
A I don’t know where Fred Myers’ store was, we have
stores all over the state of Washington of Fred Myers
and I can’t see Portland on here, sir.
Q Well, it is not there. My question was, it was your
testimony in regards to identifying the Fred Myers
marking on some other shells.
A I believe one of the other boxes had a Fred Myers
sticker on it, yes, sir.
Q Do you recall that you noticed this Fred Myers
sticker at the time you initialled the shells?
A I don’t recall. I initialled these. I know these are
the boxes, sir.
MR. MOBERG: I believe that is all.
THE COURT: I will overrule the objection.
[118] MR. CRUM: I will offer 8.
MR. MOBERG: We have no objection.
THE COURT: Plaintiff’s Exhibit 8 for identification
is admitted.
BY MR. CRUM:
Q Now, are there any other items that Mrs. Powell—
or Mrs. Bailey, excuse me, turned over to you on either
of these two occasions you described when you met with
her?
A No. ,
Q Now, did you have any further contact with Mrs.
Bailey after she turned this last package over to you?
61
A She called me in the evening of the 14th of March. I
believe that was a Wednesday. She called the United
States Penitentiary at McNeil Island, as she did not
have my number, and they in turn called me, the control
center, and I in turn called Mrs. Bailey. I believe I
called her at GR 2-9797.
Q Can you be sure of that phone number?
A That phone number is GR 2-9797.
Q Have you refreshed your recollection with reference
to the phone number?
A Yes, sir, I have written it down in my address
book.
Q Do you have it with you?
A I have it in my pocket.
Q I wonder it we could see it?
[119] A _ I would prefer not to have my telephone book
admitted into evidence because I have many confidential
things in it.
THE COURT: You don’t have to.
Q I’m just asking you whether or not that phone book
reflects the telephone number, GR 2-7997.
A It does, sir, in my handwriting.
Q That is the telephone number you called to con-
tact Mrs. Bailey?
A Yes, sir.
MR. CRUM: I wonder if you would like to look at it.
MR. MOBERG: Yes.
VOIR DIRE EXAMINATION
BY MR. MOBERG:
Q There is written in the address book Theresa Bailey,
and Peterson, on the top, is that correct?
A I believe so. I would read it off of there, sir, if you
desire me to.
Q And the phone number is in different color ink.
A Not the phone number in different colored ink, is
not. This here is t!:e new phone number I called on that
date, GR 2-7979. I drew a line through it. This is the
number I called right here.
62
Q When did you write this in your book?
A I haven’t the faintest idea. I write names all the
time [120] in here, and I don’t remember. And I may
get your phone number in here someday. I might need
it to call you for a lawyer, I don’t know.
MR. MOBERG: Okay.
BY MR. CRUM:
Q Anyway, that was the number you were using to
contact Mrs. Bailey?
A Yes, sir.
Q And you reached Mrs. Bailey when you dialed that
number?
A Yes, sir.
Q Now, Mr. Hicker, are you familiar with the de
fendant in this case, Josephine Powell?
A I have seen her on three occasions.
Q Do you recognize Mrs. Powell as being present in
this courtroom?
A I recognize Mrs. Powell as being in the court-
room. However, I recognize a change in Mrs. Powell from
the last time I saw her.
MR. MOBERG: I object to that, your Honor.
THE COURT: The response is proper.
BY MR. CRUM:
Q Did you finish your—
A When I last saw Mrs. Josephine Powell, on the 8th
day of March, she was heavier than she is at this time.
Her hair was more yellowish and more straight than it
[121] is at this time.
MR. MOBERG: Your Honor, I object. I can’t see
the relevancy of this.
THE COURT: He is testifying to his recognition of
her. I thing it goes to the identification and it is proper.
BY MR. CRUM:
Q Is Mrs. Powell present in the courtroom?
A Yes, she is the woman at the end of the table. I
must say she is much more attractive now than she was
then.
MR. MOBERG: Your Honor, I object again.
__— ea
THE COURT: Sustain the objection.
BY MR. CRUM:
Q How do you happen to know Mrs. Powell?
A I have seen Mrs. Powell in the inmate visiting
room at the United States Penitentiary at McNeil Island,
Washington, visiting the man she has called her hus-
band, Travis Powell.
Are you acquainted with Travis Powell?
Yes, sir, I am.
Is he an inmate at McNeil Island?
He was, sir, at that time.
At what time?
Up through the latter part of March, 1973.
He is no longer at McNeil Island?
[122] A No, sir, he is not.
Q Where is he now?
A I believe to the best of my recollection he is in the
United States Penitentiary at Marion, Illinois. That
could be changed, but I believe that is the way it was.
THE COURT: Was he at McNeil Island during the
time you had the conversations with Mrs. Bailey at the
time she turned the packages over to you?
A Yes, sir, he was.
Q Do you know of your own recollection, approxi-
mately when Mr. Powell arrived at McNeil Island?
A I don’t recollect the exact date he arrived there,
but I recollect that I first started talking to him off and
on in January of ’73. I did not have his file, but I re-
member definitely talking with him considerably, starting
in January of ’73.
Q And he remained there until approximately—
A The latter part of March, ’73. Maybe the first
of April.
Now, you testified that Mrs. Powell visited Travis
Powell during this period of time?
A Yes, sir.
Q Do you recall that from your own recollection?
A No, I have the official documents that she signed to
enter the United States Penitentiary at McNeil Island.
[123] Q Do you have them with you?
OPO PO pO
64
A Yes, I do.
Q Might we see those?
A These, sir, are the official registers for visitors to
inmates at the United States Penitentiary, McNeil Is-
land at Steilacom, Washington, dated 1-6-73; 2-1-73;
and 3-8-73, Mrs. Powell’s name is indicated.
MR. CRUM: I wonder, before you get into that if
we could identify those by marking them as an exhibit?
(Items marked for identification by the Clerk.)
Q Now, these records that you have here, how is it
that these records are kept?
A These records are maintained by day by day by
the dock officer at Steilacom. We have an officer an duty
at Steilacom on the federai section of the dock there,
sent over to McNeil Island Penitentiary, placed in a
locked area under my personal supervision as to who may
or may not have access to them. I basically am the cus-
todian of those records, yes, sir.
Q And what exactly are these records?
A These are the official registers where persons sign
in to visit inmates at McNeil Island Penitentiary. One
is made for each and every day of the calendar year.
Q Is it the normal practice that parties who make the
visit [124] sometimes register?
A They must sign the register or they are not al-
lowed on the confines of the Island, sir.
Q They personally sign?
A Yes, sir, in the presence of an officer.
Q You have indicated that you brough certain records
along with you, is that correct, just certified records.
You haven’t brought the visitors logs for all of the—
A No, these are the official registers for those par-
ticular days.
Q What significance do those particular days have?
A Those are the dates that Mrs. Josephine Powell
visited our institution.
MR. CRUM: I would offer the exhibits, your Honor.
(Proposed Plaintiff’s Exhibits 9, 10, and 11 marked
for identification. )
65
THE WITNESS: May I request, sir, that when all
the court proceedings are over and finalized, if those may
be returned to me by the court, in the future?
THE COURT: Yes.
MR. CRUM: I am sure the Court will see to it that
they are.
VOIR DIRE EXAMINATION
BY MR. MOBERG:
Mr. Hicker, you indicated that these three are dates
that [125] Mrs. Powell visited the institution?
A She may have visited prior to those dates, but
those are the dates that I observed her at McNeil Island,
sir.
Q In other words, those aren’t the only times she
visited?
A No, she may have visited other times. I have not
been asked that question, sir. I was asked when I ob-
served her, sir.
Q You didn’t bring all of the records that showed
visitation?
A Sir, I would need a truck to bring all the records.
Q Did you check the records, for example, for the en-
tire month of February or the month of March?
A We checked the record for January, February and
March, and these are the records for January, February
and March, 1973. Then Travis Powell was removed from
our institution and it was no longer necessary to go
beyond that date. I did not check prior to January 6,
1973.
Q As far as your records reflect, during the months
of January, February and March, these are the total
times she visited?
A As far as our records reflect. These are the of-
ficial sheets.
MR. CRUM: I will offer Exhibits 9, 10 and 11.
MR. MOBERG: I have no objection.
[126] THE COURT: Plaintiff’s Exhibits 9, 10 and 11
are each admitted.
66
(Records of visitation to McNeil Island marked for
identification as Plaintiff’s Exhibits 9, 10 and 11,
are admitted.)
* - * *
[127] MR. MOBERG: I think defendant’s request that
they [128] bring the records of all her visitations is sub-
mitted. I think we should request at this time, Jim, all of
the records be brought into the court bearing on the dates
between January Ist and January 13, 1973 visitation
records.
THE COURT: He has testified that these are all of
them from the period of January 6 through March.
MR. SMITH: Only as it regards Josephine Powell, we
want who else visited Travis Powell.
MR. CRUM: I fail to see the relevancy of that.
MR. SMITH: I am sure you would, but we don’t.
THE COURT: This is submitted. You are going to
have to make an offer of proof of what you intend to
prove by it.
MR. SMITH: We have no idea. We don’t have ac-
cess to the records, and they do. It is something we would
like to see, and I frankly am puzzled over whether they
would pick out those three individual records when they
have access to finding out how many people visited him.
THE COURT: What difference does it make what
other people visited him?
MR. SMITH: Because our. contention is, judge, that
this woman is innocent if there is any scheme going on.
THE COURT: No, we would be getting into some-
thing [129] she is not charged with. She is not being
charged with conspiracy by scheme or device, only with
mailing a weapon.
MR. SMITH: That is very true, but he is attempting
to prove conspiracy. That is the basis of his case.
THE COURT: No, that hasn’t come out yet.
MR. CRUM: Not the basis to show the contact be-
tween Spokane and Travis Powell, all relating back to
Mrs. Powell.
MR. SMITH: Then we would move to strike all con-
versations that relate to the first package.
67
THE COURT: Well, I had that question in my mind
at the beginning of this trial, as to why we were get-
ting into it, but there wasn’t any objection to it. I’m
going to have to_instruct the jury at the end of this
case that Théy are only to be concerned with the charge
in the indictment, that no one else is on trial, and no
other crime is being charged.
MR. CRUM: We are not alleging, judge, that the
first package is any other crime, is a criminal offense
on this offense, mailing a shotgun and shells. That is
not charged, and our position is this and I think that
is what we are establishing, we introduced the first
package because it does show motive and intent and
common scheme, and it also shows that there is no
[130] mistake or accident that this package from 1753
N. Lee arrived some place in Tacoma, Washington, and
I think we are fully entitled to bring in the first package
to show that.
es * * =
[187] Q My problem is this, you called her and asked
her to bring some weapons that she had received. That
is the first time you had talked to her?
A It was the first time I had talked to her per-
sonally, that day, yes, sir.
Q Who else talked to her that day?
A She may have received many phone calls.
Q You called her on March the 3rd, the first time you
talked to her, and you asked her to bring some weapons.
How did you find out that she had those weapons?
A I was informed that she had them, yes, sir.
[188] Q Who informed you?
A The foreman at the institution, sir.
Q When were you informed?
A March the 8rd, 1973. .
Q You called her at what time on March the 3rd?
A In the late afternoon, I believe it was 2:40 p.m.,
but it—I believe it was that time.
Q And sometime earlier that day you had gotten wind
that she received a package in the mail?
A About noon that day, sir.
68
Q Was the first time you were aware she had received
some package in the mail?
A Yes.
Q Do you know of your own knowledge when she re-
ceived that package?
A I have no knowledge of my own of when she re-
ceived that package, other than what I have heard, sir, in
the development of the case, sir.
Q What prompted you then to call her on March
the 8rd, in your capacity as correctional supervisor?
A After I discussed the matter with FBI Agent Ran-
dall Byrd, this was determined by me to be the proper
thing to do.
Q In other words, you found out about some package
that she received and you called FBI Agent Byrd?
A I went to his home and discussed it with him
personally, [139] sir. a.
Q He told you to call Theresa Bailey?
A To call and arrange for the meeting so that she
could turn over the firearms if I was there, sir.
Q Do you recall the name of the person that gave
this information to you?
A Dol recall the name of him? I know the name of
them.
Q Who was that person?
A I request the Court’s permission not to give that
man’s name, because if I do, I am in essence giving
him a death warrant, sir.
Q@ What do you mean when you say death warrant?
A We are, at this present time, sir, investigating a
stabbing at our institution in regards to a man who
passed information. I believe in my opinion I would be
putting him in danger. That he would be assaulted.
Q You would put him in danger of being harmed?
A Yes, sir, of his life, sir.
Q On March the 3rd was it your position there was
something going on internally in the prison?
A 1 have to explore the possibility. That is part of
my duty, sir.
Q I realize you have to explore it, and did you ex-
plore it?
A Yes, I did.
69
Was it your conclusion before you called Theresa
Bailey [140] on March the 3rd that there was something
going on in the prison?
I had reason to believe there was.
And for that reason you called Theresa Bailey?
I went to the home of FBI Agent Randall Byrd.
I realize that, but you called Theresa Bailey?
Yes, sir.
You told her that you knew she had received some-
thing in the mail?
A That I told her?
Q That you knew that she had received something in
the mail, without even talking to her.
A Yes, I knew she had, sir.
Q And you arranged an appointment at the Tacoma
Mali?
A Yes, sir.
OPrPOPOy
[158]
[TRIAL PROCEEDINGS, NOVEMBER 28, 1973]
[TESTIMONY OF RANDALL BYRD]
RANDALL BYRD, called as plaintiff’s witness, being
first duly sworn, testified as follows:
BY THE CLERK:
Q Will you please state your name in full for the jury
and the Court, spelling your last name.
A My name is Randall Byrd, B-y-r-d.
DIRECT EXAMINATION
BY MR. CRUM:
Q What is your occupation, Mr. Byrd?
A Iam a Special Agent for the Federal Bureau of
Investigation stationed at Tacoma, Washington.
Q How long have you been a special agent of the
FBI?
A Iam in my eighth year.
Q And you are assigned to the Tacoma office?
A Yes, sir.
70
Q Were you so employed in that capacity in Tacoma
from January, 1978 until the present time?
That is correct.
Are you acquainted with Gerald Hicker?
Yes, sir, Lieutenant Hicker.
How do you happen to know Mr. Hicker?
Mr. Hicker is my liaison officer at McNeil Island,
which is my jurisdiction relating to crimes we investigate.
[159] Q Basically, what are your duties as an agent?
A Well, we are charged with investigation of those
criminal acts specified by Congress under which we
are delegated as the investigative agency.
Q What are your duties at McNeil Island?
A At MeNeil Island, primarily as investigator of the
criminal violations occurring on a federal reservation,
which is generally referred to my office through Mr.
Hicker or by him, in terms of any murders in the insti-
tution, any assaults, and escapes, matters such as that.
Q So, McNeil Island is a federal reservation?
A That is correct.
Q In this capacity, you work with Mr. Hicker?
A Very closely.
= * * .
[172] Q Now, did you subsequently have another oc-
casion to meet with Mrs. Bailey following your meeting
of March the 8rd, 1973?
A I certainly did, sir.
Q Do you recall the date of that meeting?
A That would be a Tuesday, March the 18th.
Q And you met personally with Mrs. Bailey on March
the 13th?
A I went to her residence with Lt. Hicker, and in
my business car.
- Q Did you have any discussions with Mrs. Bailey at
that time?
A Only that, you know, she recognized us and was
expecting [173] us to be there, and nothing other than
the fact that here is a package.
Q What was the purpose of your visit?
A She said she had received another package in the
mail. She reported it to Mr. Hicker.
POPS
71
It was after that that you went to her residence?
Yes, sir.
Was there a package at her residence?
Yes, sir.
What condition was the package in at that time?
It was a completely sealed box, paper, with brown
wrapping paper.
It was unopened?
A Unopened, absolutely.
Q Have you ever seen this box before?
A No, sir.
Q What did you do with that box? Was it turned
over to you?
A I accepted it from Mrs. Bailey. I asked her if it
was her desire to turn it over to me and she said cer-
tainly, she wanted to dispose of it.
Q Was it turned over to you and—
A Yes, sir.
Q What did you do with it?
A I transported it back to my office in Tacoma.
[174] Q Was Lt. Hicker with you?
All the time until I got back to my office.
What did you do with the package?
I opened it myself.
Do you recall the contents of the package?
Yes, sir.
What was in the package?
A single-barreled sawed-off shotgun.
Was there anything else in the package?
Some shells.
Agent Byrd, I am showing you what is admitted as
Plaintiff’s Exhibit 6. I will ask you whether or not
you recognize that exhibit.
Yes, sir, absolutely.
What does it appear to you to be?
It is a box mailed to Theresa Bailey.
Have you ever seen that box before?
Absolutely, yes, sir.
When?
On March the 13th when I obtained it from Mrs.
Theresa Bailey.
>OPrO PO
OPOPO PO POY
POPO Prop
72
Q Is that the box you picked up from Mrs. Bailey?
A No question in my mind it is the box.
Q How are you able to identify it?
A On the left-hand corner these are my initials and
the date, and I also did the same thing on the addressee
[175] portion of the box, I initialled it and dated it.
Q On what date?
A March the 138th, 1973.
Q Your testimony is that is the same box you picked
up from Mrs. Bailey?
A Yes, sir, that is the item.
Q Now, Agent Byrd, I am showing you Plaintiff’s Ex-
hibit 7. I will ask you whether or not you recognize that
exhibit?
A Yes, sir, this is the item that was inside the box.
Q How are you able to recognize it?
A I also initialled this with my own initials and put
the date on it.
Q Do your initials appear on that weapon now?
A Yes, sir. I can observe it from here.
Q Does the date also appear on there?
A Yes, sir, March the 18th, 1973.
Q Your testimony is that that is the same gun that
was in the box that you opened back in your office?
A There is no doubt in my mind, sir.
Q Showing you now Plaintiff’s Exhibit No. 8, I will
ask you whether or not you recognize that exhibit?
A These I. definitely recognize.
Q How do you recognize them?
A These were the two items that I removed from the
box [176] that I got from Theresa Bailey, and I initialled
the boxes, the outer portion of the container of the shot-
gun shells.
Q Do your initials appear on that box?
A Yes, sir, I see my initials on this one.
Q Is it dated also?
A Yes, sir, March the 13th, 1973.
Q You are certain those are the same boxes of shot-
gun shells that you—
A That is the box I initialled, sir.
73
Q Now, after you opened this second package, what
did- you do with the items contained in the package;
that is; the last three exhibits that you see?
A I also locked them in the safe in the office over-
night on the 13th. It was late in the afternoon and it
was my only alternative.
Q Did you take any action with respect to any of
these items the following day?
A Yes, sir, I contacted the postal authorities and I
explained to them and exhibited to them what I had
found, and Warren Olson again, the postal inspector, was
advised of what I had.
Q Did you turn those items over to him?
A I released that day only the items in that box. I
kept the other items.
[177] Q What other items?
A The first ones that were shown, the two guns and
hacksaw blades.
Q You released the items from the first box subse-
quent to the time you released the items here?
A These were released the following morning, March
14th, and the others later. For which I have a receipt.
Q Do you have the date?
A The 22nd of March.
Q After you turned the items over to Inspector Olson,
did you have any further contract with them?
A No, sir, I haven’t seen them in the interim at all.
Q Have you had occasion to have any further con-
tact with Mrs. Bailey?
A No, sir, not until Monday.
MR. CRUM: I believe that is all I have.
* * * *
[179] Q Mr. Byrd, you indicated that you recognized
that it was a Spanish double-barreled shotgun, and you
recognized also the pump shotgun, the Mossburg?
A Yes.
Q You had both of these guns in your possession, and
I take it from approximately March the 3rd?
A Yes, sir.
Q Until March the 22nd?
A That is correct, sir.
74
Q So it would be a total of something less than three
weeks, about three weeks?
A Yes, sir.
Twenty days, something like that?
[180] A That is proper.
Q Where did you keep those guns while they were in
your possession?
A We have a stand-up safe that is a combination
safe.
Q In other words, you kept them?
A In the office of the FBI.
Q All right. You kept them yourself, in your office.
You didn’t turn them over to some other office in your
FBI department. You kept them yourself?
A That is right, sir, I did.
Q In examining both the double-barreled shotgun and
also the pump gun, shotgun, I notice they have both been
fired. Do you know who did that?
A I have no idea.
Q Did you fire them?
A No, sir
Q Do your records indicate whether or not any agent
on behalf of the postal authorities fired the guns?
A That would not be reflected in my report.
Q You have no knowledge of that?
A None whatsoever.
a = >
[183] A _ I received one package from Mrs. Bailey on
the 3rd of March, not two.
Q I understand that it has been some period of time,
and it is easy to forget things, and I’m curious to know
whether or not Mrs. Bailey could have received two dif-
ferent packages, one with guns and one perhaps shells
in it, and the second package with just the hacksaw
blades.
[184] A Mrs. Bailey—
Q Do you have any recollection of anything like that
occurring?
A None at all, sir.
75
Q Your recollection is that there was a single pack-
age and all three items were in the same package?
A To the best of my recollection.
Q All right. Now, after you got this first package
and you called up the postal authorities, I understand,
because you thought there might have been some kind of
a violation involved and discussed the contents of that
package with them?
A Yes, sir.
Q Do you know when that telephone call was made?
A It wasn’t by telephone. I would have contacted
them just down the hall.
Q They are in your same office building I take it?
A Yes, sir.
Q So you went in and talked to them about it?
A Yes, sir, the items in No. 1.
Q And also when you took possession of the second
package, you again contacted them?
A That’s right.
Q And I assume you went down and saw them and
discussed with Warren Olson, is that correct?
[185] A That is correct.
Q And it is a fact that Mrs. Bailey received a second
package with another shotgun in it and shells?
A Yes, sir, that is correct.
Q And you discussed the problem of some possible
criminal violation? \
A Yes, sir.
Q You left it up to them whether there was or was
not?
A Yes, sir. When I observed what was in the package
and I couldn’t see that it was any matter over which we
had investigative jurisdiction.
Q Did you think there was any criminal violation on
the second one?
A No, I am not familiar with the postal laws, sir. I
didn’t know.
[188] Q_ Let’s see, now, as I recall, Mr. Byrd, you
indicated I believe when you got the second package,
the sawed-off shotgun, you turned that over on the
same day you received it to the postal authorities?
76
A I couldn’t get anybody. It was too late in the
afternoon, so I kept it with me.
Q What day of the week was that, do you recall?
A The 18th should have been a Tuesday. The follow-
ing morning. It was a weekday as opposed to a week-
end.
Q That is correct. The 13th would have been a
Tuesday?
A Is it? Okay.
Q On Tuesday, when you got that, what did you do,
put it in your safe?
A Immediately.
Q And the following day, the 14th, did you turn it
over to the postal authorities?
A That is right.
Q Do you have any knowledge whether or not that
gun was ever fired or capable of being fired?
A None. I am not a firearms expert in that respect,
so whether it was fired before I had or after, I. can’t
tell you.
Q Can you tell from your inspection whether or not
that gun had been fired?
A No, sir, I really couldn’t. I had no way of con-
ducting [189] the necessary examination.
Q What in your educational courses, say, that you
took when you joined the FBI, what sort of firearm
instructions did you get, mainly pistols, revolvers, stuff
like that?
A Yes, hand use of a shotgun and rifle.
Q Did they give you any courses in breaking the
guns down and cleaning them and handling them?
A Yes, sir, that is true.
Q Do you recognize whether or not a gun had been
fired?
A No, sir, I couldn’t. I could take out my own re-
volver and I couldn’t tell you when it was fired last.
Q Well, for instance, shotguns. Based on your own
experience with shotguns and things of that nature,
can you tell whether or not you would know whether
such a gun had been fired, or any other gun?
17
A To speak absolutely and positively, no, I would
surmise or guess but as far as being an expert in tha‘
respect, no, I couldn’t tell you.
Q Do you engage in cleaning weapuns after you use
them?
A Yes, sir, absolutely.
Q Have you examined the barrels after they have
been shot?
A Certainly.
Q Have you examined the barrel of this gun, for
instance?
A No, sir.
[190] Q Handing you this barrel now, can you tell
whether or not you think that gun has been fired?
I want you to closely look at the striations that go down
that barrel, on the inside, you put it up to the light and
look through it.
A Well, if I were to make a determination on my
limited knowledge, I would look to see if there was any
powder in this area, not necessarily from around the
edge of the barrel because it’s dirty, it has not been
cleaned, but this gun had not been fired recently.
Q Look at it from the other end.
A This end?
Q Yes.
A Yes, it’s a dirty barrel.
Looking down that, do you see any striations or
lines down that barrel?
A Looking down that barrel I do see something
that looks like—nope, maybe I’m not trying it right.
Do you see the straight lines? They go right
straight down this barrel—are you familiar with how
these guns are made?
A No, sir, I don’t see any striations.
MR. SMITH: That is all.
[194]
[TESTIMONY OF WARREN MORTON OLSEN]
Q Where are you employed?
A Tacoma, Washington.
78
What is your occupation?
U.S. Postal Inspector.
How long have you been a postal inspector?
Since August, 1969.
How long have you been stationed at Tacoma,
Washington?
A Since October, 1969.
Q What are your duties basically as a postal in-
spector?
A To investigate violations of the federal postal
statutes.
Q So you are an investigator?
A Yes, sir.
Q Inspector Olsen, I am showing yon Plaintiff’s Ex-
hibit No. 2. Can you tell the Court and the jury whether
or not you recognize that exhibit?
A Yes, sir.
Q How do you recognize it?
[195] A Well, this is a Spanish made, double-barreled,
12 gauge shotgun.
Q Is that Exhibit 2 or 3 that you are looking at?
A No. 8 is the pump Mossburg. Exhibit 2 is the
Spanish double-barreled.
Q How do you recognize that item?
A In March of 1972 I saw this in the possession
of the FBI, and we discussed it. There was a Spanish,
or a Spanish made, double-barreled 12 gauge, and a
Mossburg pump, which had possibly been mailed to
Tacoma from Spokane, Washington.
I believe you said March of ’72.
"73.
You saw it in the possession of the FBI?
Yes, sir.
I wonder if I could ask you to speak up.
Yes, sir.
How do you mean, by the FBI?
Special Agent Randy Byrd of Tacoma, Washington.
He had that exhibit in his possession?
Yes, sir.
Did you subsequently acquire possession of it?
On March the 22nd, 1978, I received this from
Special Agent Byrd. I gave him a receipt for it. I
OPO PO
POPOPOP>POPOPO
79
registered and mailed it to Inspector Hootz at Spokane
[196] on that date.
Q Can you be positive that that is the same item
that you received from Agent Byrd and mailed to In-
spector Hootz?
A To the best of my knowledge this is.
Q You did not mark that item, did you?
A No, sir, I did not.
Q So you can’t be positive that that is the exact
same item?
A No, sir.
Q Does it appear similar to the item you received
from Agent Byrd?
A Yes, it does.
Q Would you please take a look at the other exhibit,
No. 3, and I will ask you whether or not you recognize
that exhibit?
A To the best of my knowledge, this is the same
Mossburg 12 gauge pump that I received from Agent
Byrd.
Q Did you receive both exhibits from Agent Byrd
at the same time?
A Yes, sir.
Q Again, what was that date?
A March the 22nd, 1973.
Q Do you know whether or not that is the same
gun you received from Agent Byrd?
[197] A I did not mark it so positively I cannot say.
Does it appear similar to the one you received?
A Yes, sir.
Q You mailed that gun to Postal Inspector Hootz?
A On March the 22nd.
Q The same date you mailed the other one?
A
Q
&
Yes.
Have you had any contact with those exhibits
since you mailed them to Inspector Hootz?
A Yes, sir, I have.
Q What contact would that be?
A I just saw them laying in a room one day.
Q Where did you see them laying in a room?
A In your office.
80
Q At the time you took possession of those two
firearms from Agent Byrd, did he turn over any other
items to you?
A Yes, sir, there were two boxes of 12 gauge shot-
gun shells and some hacksaw blades.
Q Showing you what has been marked for identifica-
tion as Plaintiff’s Exhibit 4 and Plaintiff’s Exhibit 5,
I will ask you whether or not your recognize either of
those exhibits?
A These appear similar to some I received from
Mr. Byrd.
Q Did you make any marks on either one of those
exhibits?
[198] A No, sir.
Q So you are not positive that the shells there in
Exhibit 4 and the hacksaw blades in Exhibit 5 are the
same ones you received?
A No.
Q But they do appear similar?
A Yes, sir.
Q All right. What did you do with those items?
A These were all mailed in the same pouch and mailed
to Inspector Hootz.
Q On the same day you received them from Agent
Byrd?
A Yes, sir.
Q Showing you Plaintiff’s Exhibit No. 6, Inspector
Olsen, I will ask you whether or not you recognize
that exhibit?
A Yes, sir, I received this from Special Agent Byrd
on March the 14th, 1973. I initialled it on that day.
Q Your initials appear on that package?
A Yes.
Q Where do they appear?
A On top of the label of the addressee and partly on
the parcel.
Q Is the date that you received the package on
there?
A It is.
Q And it was received by whom?
81
A From Special Agent Randy Byrd, of the FBI.
[199] Q What did you do with the package?
A I placed this in my evidence locker. I locked it
up. I notified my division headquarters there was a
probable mailing violation and I said to wait for further
instructions, to keep it under my control.
Did you keep it under your control?
Yes, sir.
Until what time?
March the 22nd, 1978.
What did you do with it on that date?
I mailed it to Inspector Hootz in Spokane.
That was the same day you mailed the other ex-
hibit you testified to?
A Yes, sir.
Q Showing you now Plaintiff’s Exhibit No. 7, In-
spector Olsen, I will ask you whether or not you recognize
that exhibit?
A Yes, sir, I received this from Mr. Byrd on March
the 14th, 1973. I initialled it and dated it on that date.
Q Do your initials appear on that?
A Yes, sir.
Did you receive that at the same time you re-
ceived the package?
A Yes, sir, I did.
Q What did you do with that after you received it?
[200] A I immediately put it in my evidence locker
with the package and notified our division headquarters.
Q You took the same procedure with that as you did
with the package?
A Exactly the same.
Q And mailed it to Inspector Hootz?
A Yes, sir.
Q And the same time you mailed the other items?
A On March the 22nd.
& * = +
[205] Q What would be the function or role of the
special investigator?
A He assists the other inspector in investigation of
external mail thefts.
OPO PO PO
82
Q Theft? 7
A Theft of mail from mailboxes and collection boxes.
Q Then is your job and the other inspector’s job to
take care of postal violations?
A Yes, sir.
Q Now, you said you had contacted somebody after
receiving this sawed-off shotgun, with the thought in
mind that there might be a postal violation, is that
correct?
[206] <A _ Yes, sir.
Q Who did you contact?
A Our division headquarters in Seattle.
Q Did you contact them by letter, or how did you
make the contact?
A I contacted them by phone.
Q You called them up?
A The initial contact was by phone.
Q I see. Did somebody from the Seattle office come
down and investigate?
No, sir.
You merely turned in a report?
After that I sent a memo in.
A written memo?
A written memo.
Who did you send that to?
Postal Inspector in Charge, Seattle, Washington.
Did you get some response from them?
They said to keep it under my control, they would
probably issue the case to Inspector Hootz at Spokane,
at the place of mailing.
Q They indicated they were going to contact In-
spector Hootz?
A Yes, sir.
Who makes the determination, the postal inspectors
as [207] to whether or not you think there was or wasn’t
a violation?
MR. CRUM: Your Honor, I’m going to object. I
think we’re getting far afield.
THE COURT: I will sustain the objection.
MR. MOBERG: I think that is all.
POPO PO POP
83
[211]
[TESTIMONY OF GURLEY C. HOOTS]
* * * *
GURLEY C. HOOTS, called as plaintiff’s witness, be-
ing duly sworn, testified as follows:
BY THE CLERK:
Q Would you state your full name for the jury
and the Court, please, spelling your last name.
A Gurley C. Hoots, H-o-o0-t-s.
DIRECT EXAMINATION
BY MR. CRUM:
Q I will ask you to speak loudly so that everybody
can hear you. What is your occupation, Mr. Hoots?
A Iam a Postal Inspector.
Where are you assigned?
A In Spokane.
[229] Q What day did you go to 1753 N. Lee?
April 16th, 1973.
Was there anyone else with you?
Inspector D. N. Hayden was with me.
Did you in fact go to the door of 1573 N. Lee?
Yes.
Did you knock on the door?
Yes.
Was the knock answered?
Yes.
By whom?
Mrs. Powell.
Do you recognize the woman who answered the door
on April the 16th at 1753 N. Lee as being the woman
sitting here?
A Ido.
Did you enter the house?
Yes.
Was there anyone else in the home besides her?
Not that I saw.
>
DPOPO PO PO PO
PO PO
84
Q Did you have any other contact with Mrs. Powell
after March the 16th, 1973?
A Yes, I participated in her arrest in August of
1973.
Q Did that take place in her home?
A Yes.
[230] Q Did you have occasion to have any other
personal contact with her after that time?
A On November the 7th I took handwriting exemp-
lars from Mrs. Powell, which were ordered by the—
Q When did you take those?
A November 7.
Q Where were they taken?
A In my office, in the Post Office Building.
Q Showing you what is marked for identification as
Plaintiff's Exhibit 12, Inspector Hoots, I will ask you
whether or not you can identify the items contained
in that Manila envelope?
A Yes, I can identify all of these items.
Q What are they?
A They are exemplars of handwriting that I obtained
from Mrs. Powell on November 7th.
Q Now, do you recognize them?
A I initialled or signed each slip of paper.
Q Those are handwriting samples that were given
by Mrs. Powell in your presence?
A Yes, sir.
You in fact observed her write out those exhibits?
A Yes, I did.
MR. CRUM: I move the admission of Exhibit 12,
your Honor.
[231] MR. MOBERG: I would like to examine those,
if I may?
MR. CRUM: Surely.
MR. MOBERG: We have no objection, your Honor.
THE COURT: Plaintiff’s 12 is admitted.
(Handwriting exemplars, marked for identification
as Plaintiff’s Exhibit 12, admitted in evidence.)
85
BY MR. CRUM:
Q Now, Inspector Hoots, you testified that you per-
sonally observed Josephine Powell fill out these hand-
writing exemplars, is that correct?
A Yes.
Q Could you describe for us the manner in which—
MR. MOBERG: Your Honor, I’m going to object to
that. I think we are getting into an area of establish-
ing a conspiracy.
THE COURT: I can’t tell yet.
MR. CRUM: I was going to ask him to recount for
us his observation of the defendant filling out these
exemplars.
THE COURT: He may answer.
Q Go ahead and describe the manner in which Mrs.
Powell filled out these handwriting samples.
A It was very slow and deliberate writing.
MR. MOBERG: His observations and the manner, I
[232] think we are getting into a problem. He can
testify as to his personal observation, but I think the
manner is objectionable.
THE COURT: He can tell what he saw at the time.
He may proceed.
A Slow and deliberate writing.
Q What time did you start taking these handwriting
samples from Mrs. Powell?
A I think it was around 11:15 a.m. |
Q Was there anyone else present besides you and Mrs.
Powell?
A Her attorney was present from the beginning.
Q And what time did you finish taking the hand-
writing samples?
A At 2:17 p.m.
Q Have you ever, prior to this time, observed Mrs.
Powell writing anything? I don’t want you to tell us
what it was she was writing, but have you observed
her prior to this time writing anything?
A Yes.
Q And was there a difference in what you observed
on the occasion when she furnished you the handwriting
exemplars and on the previous occasion?
86
MR. MOBERG: Your Honor, I’m going to object to
this as the opinion of the witness.
[238] THE COURT: He is only answering what was
asked, when he observed. You may answer.
A The other writing that you referred to was not
slow and deliberate, in the same manner that the ex-
emplars were given.
Q What did you do then with the handwriting ex-
emplars after you received them from Mrs. Powell?
A I sent them to the crime laboratory at San Fran-
cisco.
MR. CRUM: I believe that is all I have.
* * * *
[264]
[TESTIMONY OF ANTHONY EARL MABBUTT]
* * * *
ANTHONY EARL MABBUTT, called as a witness on
behalf of the plaintiff, being duly sworn, testified as
follows:
BY THE CLERK:
Q Would you please state your full name to the
jury and to the Court, please, spelling your last name.
A Anthony Earl Mabbutt, M-a-b-b-u-t-t.
[265] DIRECT EXAMINATION
BY MR. CRUM:
Q Mr. Mabbutt, we are going to ask you to speak
up, aS we have all of the other witnesses, because this
is a big room. When you answer questions, if you will
speak to the jury rather than over this way, I think
it would help. What is your address?
2222 17th West Olympic.
Are you married, sir?
Yes, I am.
Do you have any children?
No.
PO PO p>
87
Q What is your occupation?
A I am the Sporting Goods Manager for General
Store.
Q Where is the General Store located?
A Here in Spokane, 2424 N. Division.
Q How long have you been located at the General
Store?
A Two.and a half years.
Q@ Were you employed then in the latter part of
February, 1973?
A Yes, I was.
Q Were you in fact on duty on February the 21st,
1973?
A Yes, I was.
Q Generally, what are your duties at the General
Store?
A I order all the sporting goods equipment and also
sell [266] firearms and fishing tackle.
Q Did you have occasion on February 21, 19738, to be
involved in a transaction relative to a shotgun?
A Yes, I did.
Q Specifically a 12 gauge shotgun, Serial Number
GO-77180.
A Yes, I did.
Q Mr. Mabbutt, I am showing you what is Plaintiff’s
Exhibit 3, and I will ask you whether or not you can
identify that exhibit?
A Yes, I do.
Q How do you identify it?
A By the serial number.
Q The serial number is the same one we just men-
tioned here?
A Yes.
Q Now, what specifically did you do with that fire-
arm on February 21, 1973?
I told it to a—
Q You did sell it?
A I did sell it.
Q
A
>
Did you make any kind of a record of that sale?
Yes, I did.
88
Q Do you have that record with you?
A Yes, I do.
Mr. Mabbutt, I am showing you what is marked
for [267] identification as Plaintiff’s Exhibit 14, is that
the record of the transaction you made with respect to
that firearm on February 21, 1973?
A Yes, it is.
Q Is that document signed by you?
A Yes, it is.
Q What does it reflect?
A It reflects that on the 21st of February I sold a
shotgun to a Mrs. Josephine Marie Powell.
Q Is an address for Mrs. Powell given?
A Yes, N. 1753 Lee Street, Spokane, Washington.
Q The serial number of that weapon is on the
transaction?
A Yes, it is.
Q Is it the same serial number as the exhibit you
have in front of you there?
A Yes, it is.
Q What identification, if any, did you take from
the party you sold that to?
A A Washington driver’s license, plus social security.
Q All right. There is other pieces of information
on that paper besides what you testified to?
A Yes, height and weight.
Q Do you recall the woman that you sold that fire
arm to on February 21, 1973, as being in the courtroom
at this time?
[268] A Yes, I do.
Q Would you point her out?
A She is the woman sitting there at the table.
Q This is the same woman you sold the gun to on
February 21, 1973?
A Yes, it is.
Q_ Is her appearance the same as it was on that day?
A Her appearance is that she has lost weight, her
hair is a different color, and at that time she was not
wearing glasses.
Q You are positive that that is the same woman?
A Yes, I am.
ee ee ee
89
MR. CRUM: I will offer this, Plaintiff's Exhibit 14,
into evidence, your Honor.
MR. SMITH: No objection.
THE COURT: Plaintiff’s Exhibit 14 is admitted.
(Sales slip, marked for identification as Plaintiff’s
Exhibit 14, admitted in evidence.)
7 * * *
[280]
[TESTIMONY OF SUSAN LEE McDANIELS]
SUSAN LEE McDANIELS, called as plaintiff’s wit-
ness, being first duly sworn, testified as follows,
BY THE CLERK:
Q@ Would you please state your full name for the
jury and the Court.
A Susan Lee McDaniels.
THE COURT: Mrs. McDaniels, you have a soft voice
and the jurors clear over on the end have to hear you,
so do your best to speak over to them.
DIRECT EXAMINATION
BY MR. CRUM:
Mrs. McDaniels, you are married, are you not?
Yes.
What is your address?
5827 N. Lindeke.
And you have a child I understand, five days old?
Yes, we do. Six days old.
He forgot so soon. Mrs. McDaniels, directing your
attention that exhibit, which is a shotgun, broken down,
in front of you, can you tell us whether or not you
have ever seen that before?
A Yes, I have.
Q When did you see it?
A February of 1973.
And did you have occasion to sell that shotgun?
[281] A Yes, we did.
OPO PO PO
90
Q Do you remember the date?
A We ran an ad on February 21 of 1972 and we
sold it the first day the ad was run.
Q Do you recall who you sold the gun to?
A No.
Was it a man or a woman?
It was a woman.
Was there anyone besides a woman?
No, there wasn’t.
Could you physically describe the woman you sold
the gun to, if you can?
A She had light brown hair, about 145 or 150 in
pounds, and in her late thirties or early forties, and all
I can say is she was taller than I was.
Q Do you recognize that person being present in the
courtroom, the one you sold the gun to?
A No, I can’t.
Q I’m going to ask you to take a look at the de-
fendant in this case, Mrs. Josephine Powell.
MR. SMITH: You already did.
MR. CRUM: Well, a closer look.
Q You cannot tell us here this lady is positively
the one you sold the shotgun to on February 21st?
A Well, the lady had lighter colored hair than that.
She [282] weighed more than that and she didn’t wear
glasses.
Q Can you say this is not the woman?
A I can’t say whether it is or whether it is not.
MR. CRUM: I will move for the admission of this
exhibit now, your Honor.
THE COURT: Plaintiff’s Exhibit 15 will be admitted
in evidence.
(Shotgun, marked for identification Plaintiff’s Ex-
hibit 15, admitted in evidence.)
Q How much did you sell the gun for?
A $86.00 I think it was.
Q Did you get the name of the party you sold the
gun to?
A No, I didn’t.
OPO PO
91
Did you get paid in check or cash?
Cash
Did you give a receipt?
Yes.
But you got no information from the person you
sold it to?
A No.
Q To the best of you knowledge you have had no
further contact with that individual?
A No, I haven’t.
MR. CRUM: You may inquire.
OPO PO
[824]
[TRIAL PROCEEDINGS, NOVEMBER 29, 1973]
[TESTIMONY OF WILFRED M. SEBO]
= * a *
WILFRED M. SEBO, called as plaintiff’s witness, be-
ing duly sworn, testified as follows:
BY THE CLERK:
Q Will you please state your full name for the jury
and the Court, spelling your last name.
A Wilfred M. Sebo, S-e-b-o.
DIRECT EXAMINATION
BY MR. CRUM:
Q Mr. Sebo, what is your occupation, sir?
A I am Security Supervisor for Pacific Northwest
Bell Teleohone Company.
Q How long have you been employed by Pacific North-
west Bel] in that capacity?
A Since ’61.
Q Prior to that time what type of work did you
follow?
A General telephone work.
92
Q Basically, what your duties with Pacific North-
west Bell?
A I handle damage claims, either way, against the
company, and I am also designated to handle anything
that would [825] have a confidential nature to law
enforcement.
Q I see. Did you have occasion to check the files of
Pacific Northwest Bell here in Spokane relative to tele-
phone number 534-7185, or KE 4-7185, the same number?
A I would have to refer to my file here but I think
I did. Yes, I did.
Q Specifically for the month of March, 1973.
A Yes, I did.
Q Were you able to obtain the records pertaining
to phone calls made from that number during that period
of March, 1973?
I was.
When did you obtain those records?
On August 7.
And did you personally obtain the records?
I did.
Where did you get them?
From our commercial department.
What type of records are these that you refer to?
These are the long distance records of this par-
ticular telephone number.
Q Are these records kept during the normal course
of business with Pacific Northwest Bell?
A They are.
POPO PO POP
a * = ce
[328] BY MR. CRUM:
Q Mr. Sebo, directing your attention to the March
—is there a date of March 9th, 1973 listed on that
record that you have?
A Yes, there is.
Q And more specifically, does that record reflect that
a telephone call was made from Telephone Number 534-
7185 to a number in Tacoma on March 9th, 1973?
A There is a call to Tacoma on March the 9th.
Q And to what number in Tacoma is that call made?
A Area 206, 472-9797.
93
MR. CRUM: I believe that ties into the relevancy,
your Honor, and I move again for the admission.
MR. MOBERG: I am not clear. I am trying to
recall [329] back whether we established whose phone
number was on the other end of this call.
THE COURT: I think that is in the record.
MR. MOBERG: May I see the exhibit a minute?
(Counsel looks at exhibit. )
MR. MOBERG: The phone number that you testified
that the call was made from, to what address?
MR. CRUM: Well, I am going to get into that,
your Honor.
THE COURT: All we are on now is the admission
of the exhibit.
MR. MOBERG: Then recite to me the phone call in
Tacoma that you just recited to Mr. Crum.
THE WITNESS: I’m sorry, I don’t quite understund
you.
MR. MOBERG: The Tacoma number the call was
made to.
THE WITNESS: 206-472-9797.
MR. MOBERG: And you, of your now knowledge,
don’t know whose phone that is?
THE WITNESS: No, I don’t know who it is.
MR. MOBERG: My only objection at this time, your
Honor, is that the phone number alone doesn’t tie into
the residence.
THE COURT: Plaintiffs’ Exhibit 17 will be admitted.
[830] (Telephone document marked for identification as
Plaintiff’s Exhibit 17, admitted into evidence. )
BY MR. CRUM:
Q Now, Mr. Sebo, does your record there indicate
who that phone is registered to at that phone number,
534-7185?
A The subscriber that was paying the bill is Hardy
Powell.
Does it give an address?
A N. 10005 Whitworth Drive, Spokane, Washington,
99218.
94
Q What you are saying, any bills charged to 534-
7185 would be sent to Hardy Powell’s address?
A That is correct.
Q What is the prefix, 5347
A Keystone 4 in Spokane.
Q Directing your attention to the address of 1753
N. Lee in Spokane, what prefix would be used for that
area of town?
A That is Keystone, 534.
Q What prefix would be used for N. 10005 Whit-
worth Drive?
A That would be Hudson.
Q So your testimony that—let me ask you the ques-
tion, even though the bill may be sent to Mr. Hardy
Powell, that does not necessarily mean the phone would
be at that address on Whithworth Drive, does it?
A There is no indication it was on Whitworth Drive.
[335]
[TESTIMONY OF GLENN K. CARPENTER]
GLENN K. CARPENTER, called as plaintiff’s witness,
being first duly sworn, testified as follows:
BY THE CLERK:
Q Will you please state your full name for the jury
and the Court, spelling your last name.
A Glenn K. Carpenter, (spelling).
[336] DIRECT EXAMINATION
BY MR. CRUM:
Q What is your occupation, Mr. Carpenter?
A Iam a Special Agent with the Bureau of Alcohol,
Tobacco and Firearms in Spokane.
Q How long have you been in Spokane with that
bureau?
A Since June.
95
Q How long have you been with the Alcohol, To
bacco and Firearms Bureau?
A Not quite nine years.
Q Prior to that time what type of work did you do?
A I have been with the government since 1959, and
I have been with the United States Border Patrol and
the Federal Narcotics.
What type of work did you do in that?
I was an investigator.
Basically that is what you are now?
Yes.
What are the basic duties you have now?
Here in Spokane I am Resident Agent in Charge
of the office and we investigate primarily firearms and
explosive violations.
Q Now, I am directing your attention to the exhibit
that appears before you, I believe that is No. 7, and
I will ask you whether or not you recognize that exhibit.
[337] A Yes.
How do you recognize it?
I have my initials scratched on the butt.
What do you recognize it to be?
A sawed-off shotgun.
When have you previously seen that exhibit?
I first saw it in your office a week ago today, the
of this month.
Had you seen it prior to that time?
No.
Did you perform any tests on that weapon?
Yes, I did. I test fire’ the gun in your office.
How did you do that test?
A I used the brass base from a shotgun shell from
which the powder and shot had been removed. It just had
a primer in it. Inserted the primer, pulled the trigger,
and it discharged the primer.
Q Did you notice any defects in the weapon at all?
A No, it appeared to function quite well.
Q You indicated you have been an investigator for
quite a number of years, and you have been involved in
the investigation of firearms violations, is that correct?
A Yes, that is correct.
PO PO PO
> O
bo
[bOPOPOsS DODO
96
Q Have you had occasion to investigate cases con-
cerning concealed weapons?
[338] A Yes. ;
Q Have you seen the various manners and ways in
which weapons have been concealed?
A Yes, I have.
Q Have you specifically had investigations concerning
sawed-off shotguns?
A Yes.
Q I wonder if you could demonstrate to the Court and
the jury the manner in which that particular weapon
could possibly be concealed?
MR. SMITH: May it please the Court, I object to
the question. He hasn’t qualified the man as an expert
in this field. Second, the man is getting into a ques-
tion involving the jury’s duties as a fact finder.
THE COURT: I think he can proceed. The jury will
have to make the ultimate finding on this.
Q Would you step down and demonstrate?
A Normally, weapons of this type, you can place a
strap here, put it over your shoulder and hang it under
your coat. This is the procedure I have seen most used
in South Los Angeles. The other would be to slip it down
inside your trousers, such as this, and cover it with
your coat. It’s easier to conceal with an outer garment
such as an overcoat than just a jacket, but those are
two methods to conceal a short weapon.
[339] Q Any methods you are familiar with?
A Inside the trousers and under the jacket would
be the only two for a weapon as large as this.
Q Did you have occasion to measure the weapon in
my office?
A Yes, I did.
Q What are those measurements?
A The barrel is ten inches long and the overall length
is twenty-two and one-eighth inches.
MR. CRUM: That is all I have.
97
CROSS EXAMINATION
BY MR. SMITH:
Q Mr. Carpenter, did you take some other measure-
ments of that gun?
A No, I did not. .
Q Did you measure its width?
A No.
Q Did you measure its heighth?
A No, no other measurements than the ones I men-
tioned.
Q And the length was just under two feet, was it?
A Yes. Twenty-two and one-eighth inches overall in
length.
Q Okay. And you made a second measurement did
you say? What was it?
A The barrel length, ten inches.
Q The barrel length. All right. Now, you got up and
[340] demonstrated two possible methods by which you
thought such a gun might be concealed, correct?
A Yes.
Q In both instances they left large bulges, did they
not?
A I wasn’t in a position to tell.
Q They would, would they not?
A They would leave a bulge, yes.
Q Normally your work, you are talking about con-
cealed weapons, you’re talking about revolvers, pistols,
midnight specials, things of that nature?
A No.
Q What are you normally talking about?
A Any weapon that is possible to conceal on the per-
son, any weapon.
Q There could be all kinds of schemes and devices I
suppose that an ingenious person could develop to con-
ceal most any type of gun, isn’t that true?
A I might assume so, yes.
THE COURT: Mr. Carpenter, would you address
your answers to the jurors to the far end. They have to
hear your responses.
98.
MR. CRUM: What was your answer?
THE WITNESS: I assume there might be other me-
thods of concealment, yes.
[841] Q (By Mr. Smith) For instance, somebody
could put on a very long coat and conceal a full-length
shotgun by the same method that you seemed to conceal
this gun, isn’t that true?
A They could, yes.
Q Okay, when you were test firing this, it is true, is
it not, that you did not fire any shot through the barrel?
A That is true.
Q And in fact used a shell that had powder in it only?
A No, just the primer. I used the brass base of a
shotgun shell containing the primer.
Q Now, a shotgun shell—(counsel uses blackboard).
Now, a shotgun shell normally, to be used, the shells are
always the same size, isn’t that correct? For a 12 guage
shot?
A No, they have two and three-quarters and three
inch shells.
Q Well, essentially, they are the same size in di-
ameter?
A In diameter, yes.
Q The construction of a shell, it has a brass base on
the end, it extends down the shell and ends, like so, and
in front of that it has either plastic casing or a paper
casing, is that right?
A Yes.
[342] Q Looking at the inside construction of the
shell, in front of the shell you would have the crimp?
A Uh-huh.
Q That is the method by which the plastic or the pa-
per is rolled over to keep the shot inside, isn’t that right?
A Yes.
Q Then inside here you would have the little pellets,
right, and the case of buckshot you would have five
pellets, right?
A Depends on the size of the shot, of course. It
varies. It could be a slug.
Q Or a slug. Okay. It depends. You can have all
kinds of combinations up here, right?
A Right.
99
Q All the way, say from what they call a Size 9
shot, which would be the very smallest normally marketed,
all the way down to, say, a Size 2, that is the smallest,
is it not?
A Double-00 buckshot. The smallest.
Q That is the largest from shot size, and from there
you get into BB’s, and from there to buckshot?
A To my knowledge, yes. I’m not an expert on am-
munition.
Q But anyway this is the construction up here of
what you have, and you have all kinds of combinations
a person could purchase in the way of loads, is that
right?
[843] A That’s right.
Are you a hunter, Mr. Carpenter?
A I haven’t hunted for years.
Q Did you used to?
A Yes.
Q So you have some familiarity with the size of the
shot, do you not?
A Yes, I do.
Q Isn’t it true that if somebody is going to hunt
birds, for instance, the normal size shot they would buy
would range somewhere between four and seven and a
half?
A To my knowledge, yes.
Q If they were going to shoot quail or something,
they might buy seven and a half, eight, or nine, and if
they were going to shoot ducks with a few more fea-
thers, they would buy a Size 4, is that correct?
A To my knowledge, yes.
Q Have you examined these boxes of shells?
A No, I have not.
Q You didn’t see them that day up in his office, Mr.
Crum’s office?
A Not to my knowledge. If they were there, I didn’t
see them.
THE COURT: Counsel, I trust you are going to tie
this into something relevant. So far it doesn’t sound
[344] very relevant.
100
Q These shells—Allen, would you hand that box of
shells up to Mr. Carpenter, please. Would you look at
the box there, Mr. Carpenter.
A Which end, sir?
Q The end that tells the size of the shot.
A Yes.
Q Have you observed that?
-A No, I have never—
Q Well, you are observing it right now. That is
what I meant.
A Yes.
Q That is a Size 4 shot, is it not?
A Yes. |
Q And that would be perhaps considered a normal
duck load for ducks and birds?
A I have never hunted ducks.
Q Let’s get back to the shell. You have the shot,
and then in here you have the powder load, right?
A Usually in the brass base, yes.
Q Okay. And down here, located directly in the cen-
ter, you have another little brass inset, and this is called
the primer?
A Yes.
Q And when the gun is fired, the pin of the gun is
setting [345] back in this position, like so, and it moves
forward into the primer, and the primer is what ignites,
and the primer in turn causes the powder to ignite, and
when the powder ignites, it burns, forms a gas, and
pushes the shell or the shot, rather, out the shell, out
of the casing and on down the barrel of the gun, is that
correct?
A Correct.
Q Those are the simple basics of how a shotgun shell
operates, correct?
A Yes.
Q Now, in this instance, in this test firing that you
did, you removed all of the shot and you removed all of
the powder, right?
A Right.
Q So the only thing left was the primer?
A Correct.
101
Q So when we get down to what you did in this in-
stance, you have no idea, do you, other than from this
one example, or this one test that you performed with the
primer, what reaction that gun might or might not have
with the shot and the powder?
A Ihave a very strong assumption the barrel was un-
obstructed and if the firing pin ignited the primer, it
naturally follows that a full load would be spilled [346]
through the end of the gun.
Q Have you ever had any experience firing a gun like
that?
A With a full load, yes.
Q With a gun like that?
A Yes.
Q Where not only the barrel is removed, but the stock,
as well?
A Right.
Q It can’t be put to the shoulder?
A No,—well—I wouldn’t do it.
Q In fact, in order to fire that gun you would have
to hold it out like this, isn’t that right?
No, I might brace it against my side.
Or against your hip, and fire it like this?
Or inside the arm, there are several methods.
And it would have a real jolt, would it not?
Yes, they kick somewhat.
It’s a far greater kick than you would expect with
a regular shotgun?
A I think the recoil depends on the weight of the
weapon and the powder load. The recoil wouldn’t be any
greater, just a little harder to control.
Q That is a fairly heavy weapon, a lot of weight?
A Yes.
Q It has a bolt action in it?
[347] A It absorbs the recoil.
Q It’s got a lot of metal, isn’t that true?
A Yes.
Q We don’t have other guns here to compare it with.
We are only looking at this one, but as guns go, this is
a bulky, heavy gun, isn’t that true?
A It’s self-evident, I guess. Depends on what you
are comparing it with.
OPO PrOyYS
102
Q Self-evident perhaps to you, Mr. Carpenter, be-
cause you are familiar with all kinds of guns, but we’re
just talking about this one gun because we don’t have
other guns here. The fact is, this is a very heavy, bulky
gun.
A Sir, you say you are comparing it with other guns,
and I have no other gun.
Q No, we do not have.
A You went on to say in comparison with other guns
it was a bulky gun. I don’t understand your question, sir.
Q The question is this, Mr. Carpenter. You came to
court as an expert on firearms, is that right?
A No, that is not right.
Q You are not an expert?
A I haven’t been called as an expert in this court.
Q Your only expertise that you can qualify on is how
to conceal guns?
[848] A I have a working knowledge of this type of
weapon.
‘Q But you don’t hold yourself out as an expert?
A I don’t think it’s up to me to decide my expertise.
It is up to the Court.
Q Well, what do you think of yourself? Do you con-
sider yourself an expert?
A I have seen a number of these guns in the course
of my nine years experience.
Q Getting back to the original question, this is a
large, heavy, bulky gun, correct?
THE COURT: Counsel, I think you’re getting into
an argument with the witness. The gun is an exhibit
before the jury. He has explained all he can explain
about it.
MR. SMITH: Well, I wanted to get into one other
type, if I may.
THE COURT: All right.
Q (By Mr. Smith) That is true, is it not?
A Itis a matter of opinion.
Q Okay. But-because of the size of this particular
gun, it makes it difficult to conceal, doesn’t it?
A No, it does not.
Q It does not?
A I could readily conceal this weapon.
103
Q Mr. Carpenter, is there any question in your mind
that [349] this is or is not, say, a weapon that is con-
cealable?
A No, there is no question in my mind but what
that is a concealable weapon.
No question whatever?
No question.
Concealable on who?
A person of my stature, certainly.
On a big person?
I am five foot eleven and weigh 180 pounds.
The smaller the person, the more difficult a big
gun like that becomes to conceal, is that what you are
saying, because you are big?
A I don’t consider myself big. I consider myself an
average man and could easily conceal this weapon. That
is all I am saying.
MR. CRUM: Your Honor, the point is whether or
not this weapon was—
MR. SMITH: (Interposing) That is all.
THE COURT: You may step down, Mr. Carpenter.
(Witness excused. )
[850] GEORGE W. LEWIS, called as plaintiff’s witness,
being duly sworn, testified as follows:
BY THE CLERK:
Q Would you state your full name to the Court and
jury, spelling your last name, please.
A George W. Lewis, L-e-w-i-s.
DIRECT EXAMINATION
BY MR. CRUM:
Q Mr. Lewis, by whom are you employed?
A I am employed by the Postal Inspector Service,
Criminal Laboratory in San Francisco.
Q In what capacity?
A I am an Examiner of Questioned Documents.
Q How long have you been so employed?
A About five and a half years.
Q Okay. Would you briefly describe your duties?
OPO PO PO
104
A Yes. Our laboratory specializes only in problems
concerned with questioned documents. My duties fall into
several general areas. The first is the comparison and
identification of handwriting, hand printing, typewriting
and stamped impressions. We also, or I also examine
eases involving documents that have been erased or
obliterated. I examine cases involving questions con-
cerning papers and inks and adhesives that have been
used in the preparation of documents. I also process
[351] documents for latent fingerprints and compare
any developed latent fingerprints with fingerprints of
the suspect. I make written reports of my findings in
cases, and where necessary, I testify to my findings
in a court or hearing.
* * * aa
[366]
[TESTIMONY OF GEORGE W. LEWIS]
DIRECT EXAMINATION (Continuing)
BY MR. CRUM:
Now, Mr. Lewis, let’s back up for a moment. I
have handed you Court’s Exhibit B and Plaintiff's Ex-
hibit 18. Now, Court’s Exhibit B are business records,
are they not?
A Yes.
Q Do those business records contain a signature?
A Yes, there appears several signatures.
Q Are you going to testify or is part of your testi-
mony going to based upon some writings contained in
those business records?
A Yes.
Q Have you compared those business records with
any other [367] known handwriting of this defendant?
A Yes, I have.
Q Would that be No. 13?
A Yes.
Q What is Plaintiff’s No. 13?
A Plaintiff’s Exhibit 13 is a Postal Inspection Serv-
ice Warning and Waiver Form.
105
Q Does that exhibit bear the signature of this de-
fendant?
A It bears the signature of Josephine Powell.
Q All right. And you compared that signature with
signatures contained in those business records?
A Yes, I did.
Q Based upon that comparison, have you reached a
conclusion?
A Yes, that they were—sorry.
Q What is your conclusion?
A They were both signed by the same person.
Q Now, there’s other information, other than the
signatures in those business records, is there not?
A Yes.
Q Can you tell us whether or not the person that
signed the business records also filled out the contents
of the business records? Yes. In making my examina-
tion I did look for this, and I see no indication what-
ever that the person who signed the business records did
not [868] also complete the business records. That is,
yes, the person who signed them completed them.
Q That is your opinion?
A Yes.
What is that opinion based on?
A Simply that I see no indication otherwise that
anyone else was involved in completing them.
Q Are there certain factors that lead you to that
conclusion other than negative factors?
A Yes, positive factors along the same—although the
business records have been written in different pens, de-
pending on the time they were completed, each time
the same colored ink has been used to complete the
form, as was used to sign it. It was in the same style
and character of the writing of the signature, and the
written portion of the form.
MR. CRUM: I believe that is all I have, now, your
Honor, with respect to that.
106
[457]
{TRIAL PROCEEDINGS, NOVEMBER 30, 1973]
(TESTIMONY OF DEFENDANT,
JOSEPHINE POWELL]
. & a =
JOSEPHINE POWELL, called as a witness in her own
behalf, being first duly sworn, testified as follows:
BY THE CLERK:
Q Would you please state your full name for the
jury and the Court, please.
A Josephine Powell.
DIRECT EXAMINATION
BY MR. MOBERG:
Q Now, Josephine, when were you born?
A Tenth month, and the 27th day of 1943.
Q You probably will have to speak up and talk to-
wards the jury.
A The tenth month, the 27th day of 1943.
Q You are approximately 30 years old, is that cor-
rect?
A Right.
[458] Q Were you born in the state of Washington?
A No, I was born back East.
Q And how long have you resided in or around the
state of Washington?
A About 20 years.
Q About 20 years?
A Right.
Q Most of that time was in the Vancouver, Wash-
ington area, is that right?
A Right.
Q Your parents still live in the Vancouver, Wash-
ington area?
A Right.
Q I take it that your formal schooling—what kind
of education have you had?
A Half of a semester of sophomore.
107
Q So you went through the ninth grade and a half
semester of the tenth grade?
Right.
This was again in the Vancouver area?
Right.
Do you have any children?
I have two.
And who are they, what are their names?
Jeffrey Alstine and Douglas Alstine.
[459] Q These are children from a previous marriage,
is that right?
A Right.
Q How long have you been in the Spokane area?
A About two years.
Q While in the Spokane area have you been em-
ployed?
No.
Have you been attending school?
A Right.
Q What kind of schooling are you in now?
A Mostly basic, to get my high school diploma.
Q How long have you been in that program?
A
Q
sch
POP POP
OP
I started November the 9th of 1972.
And what do you basically do? Do you attend
ool every day while you are on this program?
A Yes.
Q You attend classes?
A Right.
Q Again, I will probably have to tell you that you
are going to have to speak up. The jury are quite a
distance away over here and you have sort of a soft voice,
and this is a big courtroom.
So, do you know of Travis Powell?
A Yes.
Q And when did you meet Travis Powell?
[460] A In 771, I think.
Q 1971?
A Right.
Q And you have known him since 1971, is that
correct?
A Right.
108
Q You are not the wife of Travis Powell?
A No.
Q There was never a marriage ceremony or anything
like that?
A Right.
And your true name, or your name before you met
Travis Powell, was Josephine O’Connor?
Right.
Is that your maiden name?
Right.
That is the name of your parents?
Right.
Now, do you recall what month you arrived in
Spokane?
A About May, I think.
Q Of 1972 or 1971?
A No, before—hummm—since 7—it was in ’72. It
was before April.
Q Before April?
A Right.
And you enrolled in this school program shortly
after [461] you arrived here then?
A No.
Q You didn’t. When did you first enroll in your
schooling?
November of 772.
Are your children in school?
Yes.
Jeffrey is ten. What grade would he be in?
He is in the third.
The third grade?
Right.
Douglas is seven and that would put him in the
first grade?
A First grade.
Q Now, Josephine, did you have occasion to purchase
a shotgun at some time?
A Yes.
Q And do you recall approximately the month or the
day that you had occasion to purchase the gun?
A February the 21st.
OPO Pop
OPO PO POP
109
Q February 21st, 1973?
A Right.
Q And obviously you had some reason to purchase
that gun, did you not?
A Yes.
Q What was the reason that you went down and
purchased the [462] shotgun?
A I purchased it more or less for protection of things
going on. Some occasions there has been somebody in
my house. I have come in my house, I have noticed
things changed around a little bit other than when I
left it, and I bought it because of what is going on
in the people breaking into homes and so forth.
MR. CRUM: You’re going to have to speak up.
THE COURT: I think if you turn your head to the
jury rather than to counsel it would help.
Q (Mr. Moberg) Let’s go over that one more time.
It is important that the jury hear this. Do you want
to again explain to the jury, for the reason that some
of the jurors may not have heard you, your reasons
for purchasing this gun on February the 21st, 1973?
A On occasions there were—
Q Talk directly to the jury.
A On occasions when I have come home when I
have beea gone there has been things moved around in
my house that wasn’t that way when I left and I bought
the gun on what I have heard in the papers about men
coming in the house and directly assaulting a woman
and taking her money.
Q You basically purchased this gun for some sort of
security for yourself?
A Right.
[463] Q When you purchased this gun did you have
occasion to—well, when you purchased this gun, was it
packaged or loose?
Right, it was in a box.
It was in a package?
Right.
You took the gun home that day, I suspect?
Yes.
What did you do with it then?
OD POPo YS
110
A I put it in the closet in my bedroom.
Q Did you unpackage it before you did that?
A No.
Q When you got it home—are you familiar with
how to clean a gun?
A No, not really.
- Q You didn’t assemble it or clean it or anything
like that?
A No.
Q Just left it in the package?
A Right.
Q And you put it in your closet. Whereabouts in
your closet did you put it? Did you put it in a drawer?
A On the shelf.
Q On a top shelf or bottom shelf?
A A bottom shelf, right.
[464] Q Had you at any time had occasion to or the
need to return and see that weapon and/or use it?
A No, I didn’t.
Q After having put that weapon in your closet, when
was the next time that you had occasion to go and check
to see, to pick that weapon up?
A I never picked it up.
Q Did you—do you recall when Inspector Hoots came
to see you?
A Yes.
Q This was approximately April 16, I believe, of
1973?
A Yes.
Q Do you recall the occasion?
A I don’t recall the date.
Q I believe from the previous testimony the date
was sometime in April. And in April did you have oc-
casion to go on the 16th in response to a request by
Mr. Hoots, did you have occasion to go to the closet
to check to see if the gun was there?
A Yes.
Q@ Was the gun there?
A No, it wasn’t.
Q Is that the first knowledge you had of its disap-
pearance?
A Yes.
111
Q Now, again, in regards to this conversation with
[465] Inspector Hoots, would you—strike that. Inspector
Hoots came out to your home sometime in April?
A Yes.
Q And you recall that?
A And he was with another gentleman, yes.
Q Would you get into the particulars—what was the
purpose of his calling on you that day?
A More or less to see if I purchased a shotgun.
Q I see. And did he also inform you at that time
that he was making some sort of an investigation of
some possible violation of the mail laws?
A Yes.
Q And that was the time when he asked you if you
had that gun and you responded yes, is that correct?
A Yes.
Q And then when you went to check the gun, the
gun wasn’t there?
A Right.
Q Did you come out and tell Inspector Hoots that?
A Yes.
Q What did you tell him?
A I says the gun is not here.
Q Did he ask why, or did you give him any ex-
planation why it wasn’t there?
A I don’t recall if I did or not.
[466] Q Now, again you have a very soft voice and
it’s going to be very necessary for you to speak up so
the jury can hear you. Okay?
A Yes.
Q Thank you. Do you know a Theresa Bailey?
A No, I don’t.
Q Have you ever seen Theresa Bailey in your life?
A No.
Q Except for here in the courtroom?
A That’s all.
Q In the times that you might have been visiting
Travis Powell you have never bumped into Theresa
Bailey?
A No.
112
Q Have you ever met Mr. George Bailey?
A No.
Q It is my understanding that it wasn’t unusual for
you to go visit Travis Powell?
A No, it wasn’t.
Q As a matter of fact he was there from approxi-
mately September of ’72 until March of ’73, is that
correct?
A Right.
Q And during those five or six months you visited
him almost every month, is that correct?
A Right.
Q Now, directing your attention to March 8 of 1973,
did [467] you visit Travis Powell on that day at McNeil
Island?
A Yes.
Q And when you visited Travis Powell on this day,
of course it was necessary for you to travel down to
Tacoma from Spokane, is that right?
A Right.
Q You generally leave Spokane—how long does it
take you to get from—how do you go from Spokane to
Tacoma?
A Take a bus.
Q Take a bus?
A Right.
Q What time did you—would you have caught the
bus, or did you catch the bus to get to McNeil for a
visit on March the 8th?
A 8:30 in—
Q_ In the evening?
A Right.
m So that would be March 7 that you caught the
us?
A Right.
It was necessary for you to get on a Greyhound
bus from Spokane here at 8:30 in the evening of March
the 7th, then that bus traveled to Tacoma and what
time does that bus arrive at Tacoma?
A About 1:15 or 1:30.
113
Q Abuot 1:15 in the morning?
[468] A _ Right.
Q So you arrived in Tacoma on March the 8th, al-
though very early in the morning, 1 or 1:15 in the
morning. Then I assume you arrived at the Greyhound
Bus Depot?
A I took a taxi over to the Trailway bus.
Q Did you take a taxi to another bus station?
A Right, because that bus station is closed and you
can’t stay around that, and that’s where I take the bus
in the morning.
Q You catch the bus to go to Steilacom?
A Yes.
Q At 1:15 you arrived in Tacoma. You then take a
taxi to the Trailway Bus Station?
A Yes. I’m pretty sure that’s the name of it.
Q Some name like that?
A Yes.
Q And it doesn’t take you long in a taxi to get
there, does it?
A No, it’s not very far.
Q That’s still relatively early in the morning, is that
correct?
A Right.
Q Specifically on the day of March 8, did you wait
in the bus depot?
A No, I waited for—I ate, about fifteen or twenty
minutes, [469] maybe a half hour.
Q You ate, and then did you go get a room?
A Yes, I did.
Q Do you recall the name of the place that you
stayed?
A No, I don’t. It is just around the corner from the
bus depot.
Q Just around the corner from the bus depot?
A Right.
Q And then I take it you rest there until you get
a bus to Steilacom?
A Right.
Q What time does the bus leave from this bus depot
to go to McNeil Island?
114
A At 8:30.
Q 8:30 in the morning?
A Right.
Q So you catch this bus at 8:30. Where does that
bus go?
A It goes to Steilacom and McNeil Island.
Q I take it Steilacom is on the mainland and McNeil
Island is on the island?
A Right.
Q Is there a boat dock in or near Steilacom?
A Right.
Q You take the bus to Steilacom, and what time
did you arrive at Steilacom?
[470] A 9 or 9:30.
Q 9 or 9:3
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