# Appendix — United States v. Powell > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2424%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1975 - **Citation:** 423 U.S. 87 ## Text 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 NT, TORII TN Biciiseccirccaisele heticinsbnieniecceneca ene 1 IN cicada chic itacilneclsshipcmmiasiashsactglta hisidpiaeiaias ina cipaaaie aaa ai 6 Excerpted portions of trial transcript ...............0.200.222.-.2......-- 7 EE Ge GI aihitcdnocccaccaitinaunacatcencintaccamaincadicistaaiendaneiien 132 a aay _ re ae a ae ao Pe io 1 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 cei 2 ROPO POY = i) 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 —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] 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 quai [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2424%3A2. Public record. Not legal advice.