# Petition — Peltier v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2148%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 440 U.S. 945 ## Text WALL BoD, IN THE Supreme Court of the United States OcTOBER TERM, 1978 No. 78-893 LEONARD PELTIER, Petitioner, V. UNITED STATES OF AMERICA, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT MicuHake. E. Ticar JOHN J. PRIVITERA 1302 18th Street, N.W. Washington, D.C. 20036 ARTHUR KINOY 76 N. Fullerton Montclair, New Jersey 07042 WiniaM M. KUNSTLER 13 Gay Street New York, New York 10014 Counsel for Petitioner. Press or Byron 8. AnaMs PRInTING, INc., WASHINGTON, D.C S TABLE OF CONTENTS ese ds ceccce sr ee ee wenceces I ccc acs cescveccccecs SRI I I oon bcos dccccaeacceccccecs ec cecceces The Trial: Evidence of Government Misconduct The Trial: The Myrtle Poor Bear Episode ...... Evidence of Other Crimes, and Other Weapons . Reasons For GRANTING THE WRIT ................--; 3 Il. ilf. IV. V. The Extradition Was Based In Part On Fraud. This Court’s Supervisory Power Should Be Exercised To Enter An Order In Arrest Of ee Or ap eke cee cece s The Decision Of The Court Of Appeals Misreads Federal Rule Of Evidence 403 As A Bar To A Defendant’s Fifth Amendment Right To Due Process And Sixth Amendment Compulsory Process Right To Present Competent, Relevant Re ee ME led cbicccwrerccsscccss Other Cireuits Have Held That Evidence Of Spoliation, Witness Coercion And Subornation Of Perjury Is Admissible To Prove Conscious- I ee ED Kode tie tiedccccccerss Other Circuits Have Held That A Defendant Is Entitled To A Jury Instruction That Govern- ment Threats To Witnesses May Be Regarded As Evidence Of The Weakness Of The Govern- IRE ce acne tuaeedecidehbebernecess The Court Of Appeals Has Vitiated The Control Of The Admission Of Other Crimes Evidence To Be Found In Federal Rule Of Evidence 404(b) And Required By Other Circuits .............. a") ) i) ce) eo NOC rR WD WO W 12 15 16 (ii) TABLE OF CONTENTS (cont’d) Page VI. The Decision Below Conflicts With The Decision Of Other Courts Of Appeals As To The Admissi- bility Of Other Weapons Evidence ............ 21 CI as dnd oc kaa be AR a ode oka ch bee dabs 22 PEPE eo 6k nee ee ed Raabe seo or aes ne we rane la EE ck Sx bb eee vee ei eee sy Chea bbws o karan 43a I Gee as ea vin iu Ge Kee nc cdbe vec ea Oka ehok eas 53a TABLE OF AUTHORITIES Cases Page Alberty v. United States, 162 U.S. 499 (1896) ........ 20 Allen v. United States, 164 U.S. 492 (1896) .......... 16 Chambers v. Mississippi, 410 U.S. 284 (1973) ...... 14, 15 Cosgrove v. Winney, 174 U.S. 64 (1899) ............ 12 Frisbie v. Collins, 342 U.S. 519 (1952) .............. ll Hickory v. United States, 160 U.S. 408 (1895) ...... 20 Johnson v. Browne, 205 U.S. 309 (1907) ............ 11 Ker v. Illinois, 119 U.S. 436 (1886) ................ 11 Moody v. United States, 376 F.2d 525 (9th Cir. 1967) . 21 Tatum v. United States, 190 F.2d 612 (D.C. Cir. 1951) 17 Thomas v. United States, 376 F.2d 564 (5th Cir. 1967) 21 United States v. Adeock, 558 F.2d 397 (8th Cir. 1977) 19 United States v. Alfonso-Perez, 535 F.2d 1362 CO Ca ee sb aseccy che oN cree ak events nacesen 17 United States v. Benedetto, 571 F.2d 1246 Ce SP, Sci ck ohc cawcssaedensanbtiacasaes 19 United States v. Bohr (No. 78-1096) slip op. CO CRE Uy Te Se kon cick evs vive sdedcses 19 United States v. Burr, 25 F. Cas. 30 (No. 24692d ) (CIR. Wei Te hiv v9 0b sbacs daadeceeasieuecves 15 (iii) United States v. Burr, 25 F. Cas. 187 (No. 14694) CER We IR dscns deah.cvcsnensvcseh sacbis's United States v. Clemons, 503 F.2d 486 (8th Cir. 1974) United States v. Haggett, 438 F.2d 396 (2d Cir.), cert. denied, 402 U.S. 946 (1971) ............6... United States v. Hearst, 563 F.2d 1331 (9th Cir. 1977) cert. denied, 435 U.S. 1000 (1978) ...........0 eee United States v. Honore, 450 F.2d 31 (9th Cir. 1971) cert. denied, 404 U.S. 1048 (1972) .............. United States v. Jones, 570 F.2d 765 (8th Cir. 1978) .. United States v. Long, 574 F.2d 761 (3d Cir. 1978) .. United States v. Loud Hawk, (Nos. 76-1906, 76-2127, ) slip op. (July 26, 1977), rehearing en bane granted pending remand (9th Cir. March 6, 1978) ........ United States v. Myers, 550 F.2d 1036 (5th Cir. 1977) United States v. Palmieri, 456 F.2d 9 (2d Cir.), cert. denied sub nom., Wisniewski v. United States, 406 Se NE er dae 5 cb dak iba Re eo ed bse 6s United States v. Partin, 493 F.2d 750 (5th Cir. 1974).. 15 19 16 17 United States v. Rauscher, 119 U.S. 407 (1886) ..10, 11, 12 United States v. Reid, 410 F.2d 1223 (7th Cir. 1969) .. United States v. Robinson, 560 F.2d 507 (2d Cir. 1977) (en banc) cert. denied, 435 U.S. 905 (1978) ........ United States v. Schennault, 429 F.2d 852 I Coa we he coh n a6 8 680.08 United States v. Toscanino, 500 F.2d 267 I a ae ka ce ea oo cle ecelsse a 6h an Goes United States v. Turner, 485 F.2d 976 (D.C. Cir. 1973) United States v. Vole, 435 F.2d 774 (7th Cir. 1970) ... United States v. Warledo, 557 F.2d 721 ES Se rear ebl see be eaecoks United States v. Weir, 575 F.2d 668 (8th Cir. 1978) .. United States v. Williams, 577 F.2d 188 Rs eter i ks cheeses sis xecene Washington v. Texas, 388 U.S. 14 (1967) .......... 21 21 11 15 16 21 18 (iv) Page Wong Sun v. United States, 371 U.S. 471 (1963) .... 20 RvuLEs AND STATUTES: Federal Rule of Appellate Procedure 10(e) ........ 9 Federal Rule of Evidence 403 .............0006. 12, 13, 14 Federal Rule of Evidence 404(b) ............00000- 17 EBs Coe | | Pere a ene 21 2% UBL. 4 5GGRGE). .. ccivcikcicnevetracnsaeeeeae 21 98 UBL. GIBB) 2 on cinccdsvsectasuenceeeeeee 2 Orurr AUTHORITIES: Garcia-Mora, M., Criminal Jurisdiction of a State Over Fugitives Brought From a Foreign Country by Force or Fraud: A Comparative Study, 92 Ind.L.d. 498 (30GT) 6vcsdvccncnuaneseeenees 11 Webster-Ashburton Treaty of 1842, as amended, S Bea, SRS oo is0ccevctuscces ena eee 10 Westen, P., Compulsory Process, 73 Mich. L. Rev. 71 CRGTE) x o.c.000s'c00e-seaanes eee nee 14, 15 Westen, P., Compulsory Process II, 74 Mich. L. Rev. BGR (16S) ..... ecvcscwaseneeusneeseeeenee 14 Wigmore, III, Evidence § 278 (Chadbourne rev. 1970) 12 Wigmore, III, Evidence $§ 960 and 1005 at 805, 969 (Chadbourne rev. 19VG) ..cccccscccncuceusnennes 13 IN THE Supreme Court of the United States OctToBER TERM, 1978 No. LEONARD PELTIER, Petitioner, Vv. UNITED STaTEs OF AMERICA, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Petitioner, Leonard Peltier, prays that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Eighth Circuit, affirm- ing his conviction in the United States District Court for the District of North Dakota of two counts of first- degree murder, in violation of 18 U.S.C. §§ 1111 and 1114, ascribing criminal responsibility for the deaths of two FBI agents. The petitioner is incarcerated in the federal penitentiary at Marion, Illinois, having been sentenced to two consecutive life terms. 2 OPINIONS BELOW The opinion of the court of appeals, as amended on denial of rehearing, not yet officially reperted, is printed as Appendix A. JURISDICTION The judgment of the court of appeals was entered on September 24, 1978. A timely petition for rehearing was denied on October 27, 1978. On November 17, 1978, Mr. Justice Blackmun granted a timely applica- tion for extension of time in which to file this petition to and including December 4, 1978. This Court has jurisdiction under 28 U.S.C. § 1254(1). QUESTIONS PRESENTED 1. May an extradition from a foreign country pur- suant to an international treaty be based in part on affidavits acknowledged by the United States govern- ment to be false? 2. Is it a violation of an accused’s rights to compul- sory process and due process of law to exclude the competent, relevant testimony of a defense witness that government witnesses had intimidated and co- erced her to sign false affidavits? 3. When a jury has heard evidence of government threats to witnesses, is an accused entitled to a jury instruction that the threats may be evidence of the weakness of the government’s case? 4. Is it proper under Federal Rule of Evidence 404(b) to introduce into evidence lengthy and detailed accounts of other crimes and unrelated other weapons evidence going to collateral matters such as flight? 3 STATEMENT OF THE CASE On June 26, 1975, three people were killed by gun- fire at Pine Ridge Indian Reservation in South Da- kota: one American Indian, Joe Stuntz, and two FBI agents, Williams and Coler. The death of Joe Stuntz has not prompted any criminal charges. Four American Indian males were charged with murdering the two FBI agents: Jimmy Eagle, Dino Butler, Bob Robideau and Leonard Peltier. The government dismissed the charges against Jimmy Eagle. A jury acquitted Dino Butler and Bob Robideau in Cedar Rapids, Iowa. Leonard Peltier was extradited from Canada and tried separately. The case against Leonard Peltier, as against Butler and Robideau, was entirely circumstantial. The govern- ment’s theory throughout both trials was that Williams and Coler were present on the reservation in an at- tempt to locate and arrest Jimmy Eagle, and were “ambushed” by Peltier and others. Leonard Peltier was on the reservation June 26; he fled. T. 1539-58." He had come to Pine Ridge at the request of a board of tribal elders who knew his rep- utation as an organizer and leader, T. 3590, and he divided his time there between the compound of houses where the three deaths occurred and a nearby tent area set up in a traditional, religious fashion. T. 856-57, 3519-22. Many of the residents in the tent area were members 1 The defense was precluded from showing that Peltier was, with reason, afraid the FBI would kill him, and showing the climate of terror on the reservation. T. 3820, 3923. These facts would have shown that Peltier had reasons other than consciousness of guilt to leave. 4 of the American Indian Movement (AIM). Several witnesses testified that the occupants in the tent area feared an assault by Bureau of Indian Affairs officers and some of the more reactionary residents on the reservation, who had been known to harass and assault members of AIM. T. 401, 858, 1120, 1421, 1578. In fact, this climate of fear and oppression had prompted the elders to invite Peltier to the reservation. T. 3593-94. When Peltier fled, he sought refuge in Canada. The Extradition Peltier was indicted in the United States and ar- rested in Canada on February 7, 1976. The United States instituted extradition proceedings. The indict- ment was presented to the Canadian authorities along with an alleged eyewitness account of the murders. Two affidavits, said to have been signed by an Indian woman named Myrtle Poor Bear, were tendered by the United States to the Canadian government.’ The affidavits were dated February 23, 1976 and March 31, 1976, respectively. In them Poor Bear swore she saw Peltier shoot the two agents. An extradition order was entered. While Peltier was appealing the extradition order to the Minister of Justice of Canada, the Butler-Robi- deau trial for the same offense was underway at Cedar Rapids. Myrtle Poor Bear was on the government’s witness list. In response to a discovery request, the government produced a Myrtle Poor Bear affidavit 2 These two affidavits were reprinted in the Appendix as Affidavit 2 and Affidavit 3 at 45a-50a. Seas a. 5 dated February 19, 1976, in which she swore she had left the reservation before June 26.° Affidavit 1 was presented to the Minister of Justice of Canada as newly discovered evidence but the extra- dition was allowed to stand. The Trial: Evidence Of Government Misconduct There were no eyewitnesses to the killings. Only three government witnesses placed Peltier and others in the vicinity of the agents’ car: Wish Draper, Michael Anderson and Norman Brown. T. 788, 1037-38, 1445- 46. All three witnesses were young American Indians. They also said they had been threatened, intimidated, or physically abused by FBI agents during the investi- gation, including the government’s principal witness Agent Adams. T. 841-44, 1097-100, 4802-06. Draper testified that he had been handcuffed and tied to a chair for three hours during an FBI interview. T. 1084. Defense witness Gene Day testified that the FBI agents threatened to take her children from her if she did not speak to them, and Norman Brown (recalled by the defense) stated that FBI threats had led him to testify falsely before the grand jury in this case. T. 3554, 4812. In order to put the evidence of government miscon- duct which the jury was allowed to hear in proper per- spective, the defense requested the following instruc- tion, which the trial court refused to read: “Testimony has been adduced in this case which 8 This affidavit is reprinted in the Appendix as Affidavit 1 at 43a-45a. 6 if believed by you shows that the government in- duced witnesses to testify falsely. If you believe that the government, or any of its agents, induced any witnesses to testify falsely in this case [or in any related case], this is affirmative evidence of the weakness of the government’s case.” The Trial: The Myrtle Poor Bear Episode Myrtle Poor Bear was listed as a government witness in this case. Relying on this assurance, defense counsel was led to say in the opening statement that she was an “unbelievable” witness based on the three inconsistent affidavits. During the government’s case a shadow of doubt was cast over the Poor Bear affidavits by the testimony of four government witnesses that she had never been seen or heard of in the Jumping Bull Compound on the reservation where the three deaths took place, T. 849, 1118, 1597, 2701-03, and by the testimony of Dean Hughes, the chief investigator on the case, that he had no knowledge of when or how she became an informant. T. 2915-19. The government elected not to call her. The defense then sought to call Myrtle Poor Bear in Peltier’s de- fense to demonstrate that the government had resorted to fabrication of evidence, obstruction of justice, sub- ornation of perjury and intimidation, all classic indicia of consciousness of a weak cause, and to lay bare the bias and hostility of two government witnesses, Woods and Price. The trial court entered a material witness order unopposed by the government. Poor Bear was ealled by the defense, but the jury 7 never heard a word of her testimony. It was preserved for review in an offer of proof.’ She recanted virtually every allegation in the affi- davits, swearing that FBI agents Woods and Price, two government witnesses at the trial, threatened to kill her if she would not inculpate Peltier. She swore that she had been taken to the Jumping Bull Compound to survey the area, previously unknown to her, prior to signing the affidavits. T. 4584-650. Also during the offer of proof, the defense sought to discover who prepared the affidavits. Agent Skelly said Woods and Price pre- pared the affidavits. T. 4501. Price said that he had interviewed Poor Bear but that the affidavits were pre- pared by a United States Attorney or the Canadian counsel representing the United States at the extra- dition. T. 4540. During the oral argument before the eighth circuit, the United States Attorney admitted that the Poor Bear affidavits were false. An excerpt from the tran- script of the hearing is reprinted as Appendix C to this petition at 53a-56a. Evidence Oi Other Crimes, And Other Weapons Evidence of other crimes and weapons introduced by the government over strenuous and repeated objection permeate the entire record. In the interest of brevity, only a few are recited here: 1. A prior unrelated attempted murder charge in Milwaukee. T. 3417. Since the trial of this case, “One of the U.S. Attorneys stated, during the offer of proof, why Myrtle Poor Bear had not been called as a government witness. He said, ‘‘There is no question that we had considered calling her as a witness. We did not for various reasons, including the garbage that is coming out now.’’ T. 4601. 8 Peltier has been acquitted of that charge. The court of appeals expanded the record to include the acquittal pursuant to Peltier’s F.R.App.P. 10(e) motion. 2. The explosion of an automobile in Wichita, Kansas, in which a large number of unrelated weapons and explosives were found. T. 1640-50, 2191-2216. Three firearms recovered at the scene were admitted along with several pictures of the explosion-damaged vehicle, several pictures of the eight or more firearms recovered from the vehicle, and several pictures of shells and hand grenades found at the scene. Testimony of the details of the items was heard by the jury. Peltier was not an occupant of the car and was not in the vicinity. T. 814-18, 1641-42, 2133-95. 3. Evidence of a burglary and truck theft at a home in Oregon (including fingerprint analysis), and a detailed account of an Oregon state trooper’s alleged attempt to arrest Peltier at a motor home which was stopped on the highway. The trooper testified that Peltier fired a shot at him and fled. The government introduced — of four- teen firearms, eight of which had obliterated serial numbers, and several hand grenades which were found in the motor home. The government offered ali of this evidence, which consumes several hun- dred pages of the transcript, T. 2217-2572, for the ostensible purpose of showing that Peltier was in flight. T. 2171-91.° 4. Peltier’s possession of unrelated weapons at his arrest in Canada. T. 2746-92. 5 Peltier was indicted in the County of Malheur, Oregon, for attempted murder and attempted use of a dangerous weapon for this incident. Soon after the charge was used against him in the trial below, the county court dismissed the charges. Peltier was never charged with the alleged burglary and truck theft in Oregon which was used against him in this case. Dennis Banks, Peltier, Anna Mae Aquash (who has since been killed) and others were ee Y 5. Testimony as to dynamite, hand grenades and unrelated weapons with obliterated serial numbers seized in the FBI’s raid on the Rosebud Reserva- tion 180 miles east of the Pine Ridge Reservation in September of 1975, at which Peltier was not present. T. 2573-600. No cautionary or limiting instruction was given re- garding any of this evidence until the end of the case. Instruction No, 40, REASONS FOR GRANTING THE WRIT lL The Extradition was Based in Part on Fraud. This Court's Supervisory Power Should be Exercised to Enter an Order in Arrest of Judgment. Renewed attention to the question of international rights by our own State Department and modern insti- tutions such as the Human Rights Committee of the United Nations has quickened the academic and ju- dicial debate over the conduct of states in extradition proceedings. This case asks the Court to examine and remedy as a matter of domestic law, a breach of the good faith which must be demanded in dealings among contemporary nations. The relief we are requesting here is not based solely on this Court’s inherent power or the sound principles of international fair dealing charged in federal court in Oregon with several firearms and ex- plosive possession charges after the vehicles stopped on the high- way in Oregon were searched. The district court dismissed all of these charges and the ninth circuit affirmed the dismissals. United States v. Loud Hawk, (Nos. 76-1906, 76-2127) slip op. (July 26, 1977), rehearing en banc granted pending remand (9th Cir., March 6, 1978). Pursuant to Peltier’s F.R.App.P.'10(e) motion in the court of appeals, the record in this case was expanded to include the dispositions of these charges. 10 established long ago, but a recognition that these recent developments are embodied in our Constitution.* The Poor Bear affidavits were a significant portion of the evidence tendered to the Canadian authorities in the extradition proceedings. She was the only person who claimed to be an eyewitness to the killings. The United States government has now admitted that the affidavits were false in their entirety. The treaty under which the extradition in this case took place was the Webster-Ashburton Treaty of 1842, as amended, 8 Stat. 572. The false affidavits were part of the “evidence of criminality” required by Article X of the treaty. This violation of the clear intent and meaning of an extradition treaty deprived the trial court of jurisdiction. In similar instances, this Court has directed entry of an order in arrest of judgment. United States v. Rauscher, 119 U.S. 407 (1886). In Rauscher an order in arrest of judgment was entered because a defendant’s presence was obtained by the misrepresentation that he was to be tried for murder, and he was then tried for a different offense. The government’s conduct in this case was a far more egregious affront to international law and to the sover- eignty of another nation consisting as it did of falsi- fying the “evidence” demanded by the treaty. Such misconduct must be redressed as a matter of domestic law. The government’s action is “fraud upon the rights ®The Pine Ridge Reservation is land within the territorial jurisdiction of an independent nation of peoples, the Lakota Nation. For the purposes of this point, it must be noted that Leonard Peltier does not concede the jurisdiction of the United States to demand extradition from a foreign country for an alleged offense which occurred within the territorial jurisdiction of the Lakota Nation. 8 of the party extradited and... bad faith to the country which permitted his extradition.” Rauscher, 119 U.S. at 422. “No such view of solemn public treaties between the great nations of the earth can be sustained by a tribunal called upon to give judicial construction to them,” Id. Of course, it has been held that a trial may proceed when the defendant’s presence is secured by abduction, see, e.g., Ker v. Illinois, 119 U.S. 436 (1886), and F'ris- bie v. Collins, 342 U.S. 519 (1952). But this rule has been much criticized. E.g., M. Garcia-Mora, Criminal Jurisdiction Of A State Over Fugitives Brought From A Foreign Country By Force Or Fraud: A Compara- tive Study, 32 Ind.L.J. 428 (1957), and at least one court of appeals has disavowed it, United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974). The consistent course of decision both here and abroad has, however, denied jurisdiction when custody is obtained in violation of a treaty. The principles of Rauscher have been applied not only where an Ameri- can court has tried an accused for a crime other than the one for which extradition was granted, but also where there has been an action clearly contrary to the specific authorization of the treaty by the receiving nation that betrays the good faith necessary to relations between sovereigns. In Johnson v. Browne, 205 U.S. 309 (1907), the de- fendant sought refuge in Canada. The United States had requested his extradition to serve a sentence for a crime which the Canadian government had said was not extraditable. The United States reindicted the de- fendant for an extraditable offense, obtained the extra- dition order, dismissed the charges and placed the de- 12 fendant in jail for the original sentence. The holding in Rauscher was applied. Likewise, in Cosgrove v. Win- ney, 174 U.S. 64 (1899), this Court held that the extra- dition process was abused when e defendant was ar- rested while out on bail, after extradition, for a crime which was an unextraditable offense.’ The rule is clear: Blatant government misconduct in international pro- ceedings cannot be countenanced. Il. The Decision of the Court of Appeals Misreads Federal Rule of Evidence 403 as a Bar to a Defendant's Fifth Amendment Right to Due Process and Sixth Amendment Compulsory Process Right to Present Competent, Relevant Evidence in His Behalf. The defense theory of the case was that the FBI had resorted to extraordinary, and sometimes illegal, means in proceeding against Peltier. The relevance of the Poor Bear testimony, and the purpose for which she was called as a defense witness, was that the govern- ment misconduct was evidence of government con- sciousness of a weak cause. When there has been attempted subornation, coercion of a witness, or spolia- tion of evidence, “. . . the inference, indeed, is one of the simplest in human experience ... ,” and “the infer- ence is an indefinite one, that the whole cause must be an unfounded one since such means are employed to sustain it.” III, Wigmore, Evidence § 278 (Chadbourne rev. 1970). The misconduct goes directly to the gov- ernment’s knowledge of the merits of the entire case. 7When the court of appeals was presented with this issue, it did not apply the Rauscher principle, yet. stated : ‘‘The use of the affidavits of Myrtle Poor Sear in the extra- dition proceedings was, to say the least, a clear abuse of the investigative process by the FBI. This was conceded by gov- ernment counsel on the hearing in this Court.’’ Appendix 38a-39a n.18, ce sain a wait ae 13 The Poor Bear testimony was also offered for a much simpler proposition which the court of appeals did not address. She testified that two prosecution wit- nesses had threatened, coerced and intimidated her to make false declarations. The rule here is well estab- lished. Witness bias and corruption in the form of hostility or attempts to suborn perjury is never col- lateral. It may be proven by extrinsic evidence and proof of either is admissible to contradict a witness’ testimony or prove incredibility. III Wigmore, Evt- dence §§ 960 and 1005 at 805, 969 (Chadbourne rev. 1970). See, e.g., United States v. Schennault, 429 F.2d 852 (7th Cir. 1970) and United States v. Haggett, 438 F.2d 396 (2d Cir.), cert. denied, 402 U.S. 946 (1971). Ordinarily trial court rulings under Rule 403 are entitled to great deference, but the trial court here didn’t make one. It held that the testimony was irrele- vant. T. 4665. The court of appeals, first stating that this proffer was “certainly consistent” with the defense theory of the case and that “the more prudent course might have been to allow the defense to present the evidence,” held that the evidence was properly excluded under Federal Rule of Evidence 403.° In a variety of contexts this Court has held that rules of evidence cannot be applied to restrict a de- fendant from obtaining and introducing evidence. In Washington v. Texas, 388 U.S. 14 (1967), this Court invalidated a state rule of evidence which prohibited an ®’Federal Rule of Evidence 403 reads: ‘‘Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulation evidence.’’ 14 entire class of potential defense witnesses from testi- fying on a defendant’s behalf. The state rule of evi- dence could not suspend’ the fifth and sixth amend- ‘ments. The court of appeals appears to read Rule 403 broadly as a similar partial revocation of a defendant’s constitutional right to compulsory process and due process of law. As Chambers v. Mississippi, 410 U.S. 284, 302 (1973), which overturned the exclusion of a third party’s con- fession as hearsay, makes clear, the constitutional right of a defendant “to present witnesses in [his] own de- fense” is not to be yielded up to unduly restrictive evidentiary practice. Once it was acknowledged that the testimony was “certainly consistent” with the defense theory of the ease, and therefore relevant, Rule 402 permitted dis- cretion only after a finding that probative value was substantially outweighed by the listed considerations. The trial court made no such finding. The court of ap- peals required a mere “weighing,” ignoring the burden explicit in Rule 403. The scales are not even; “sub- stantially” is not surplusage. It ts this very potnt that conforms Rule 403 with the fifth and siath amend- ments, As one commentator has pointed out, Chambers implies that when a defendant presents competent, rele- vant evidence the burden shifts to the state to “demon- strate that it is so inherently unreliable as to leave the trier of fact no rational basis for evaluating its truth.” P. Westen, Compulsory Process, 73 Mich. L. Rev. 71, 152 (1974). See generally P. Westen, Compulsory Process II, 74 Mich. L. Rev. 191 (1975). The misapplication of Rule 403 implicates basic eS ee eee ee 15 constitutional values. Indeed, it denies the very purpose for which the compulsory process clause was included in the bill of rights, implicitly recognized by Chief Justice Marshall, sitting on circuit, in United States v. Burr, 25 F. Cas. 30 (No. 24692d) (C.C.D. Va. 1807),’ to allow an accused to explore and present to the jury the other side of the government’s case. IL Other Circuits have held that Evidence of Spoliation, Witness Coercion and Subornation of Perjury is Admissible to Prove Consciousness of a Weak Cause, Chambers teaches, at the least, that evidence admis- sible against an accused is admissible in his favor, as noted by Professor Westen in Compulsory Process, 73 Mich. L. Rev. at 155. Had Leonard Peltier threatened Poor Bear with harm if she did not testify falsely in his favor, the government doubtless could have called her as a witness to testify as to those events. If the court of appeals is understood to find such evidence generally inadmissible, it is not in agreement, as shown below, with other circuits that have considered the question. The only other explication of its holding is that such evidence may only be proffered by one party in a criminai case. In United States v. Honore, 450 F.2d 31 (9th Cir. 1971), cert. denied, 404 U.S. 1048 (1972), evidence of a defendant’s attempts to intimidate a witness was held properly admitted as demonstrating consciousness of guilt. Likewise, in United States v. Turner, 485 F.2d 976 (D.C. Cir. 1973), evidence of an attempted bribery of a witness by the defendant was held admissible. 9 See also United States v. Burr, 25 F. Cas. 187 (No. 14694) (C.C.D. Va. 1807). For an analysis of Marshall’s treatment of compulsory process, see Compulsory Process, 73 Mich. L. Rev. at 101-08. 16 United States v. Palmtert, 456 F.2d 9 (2d Cir.), cert. dented sub nom., Wisniewski v. United States, 406 U.S. 945 (1972), is similar to this case. During the trial of that case, the defendant asked “A” to coerce or bribe “X” and “Y”, the victims and principai wit- nesses in the extortion offense being tried. “A” was un- successful and confessed his attempt to the United States Attorney’s office. He testified the next day as to the statements and conduct of the defendant when he asked “A” to coerce “X” and “Y”. The evidence was admitted solely as to the defendant’s consciousness of a weak cause, and held to be proper given a limiting instruction. This Court recognized as early as Allen v. United States, 164 U.S. 492, 500 (1896), “that the fabrication of testimony raises a presumption against the party guilty of such practice.” The rule fashioned by the court of appeals carves out an exception for the gov- ernment when it is a party in a lawsuit. IV. Other Circuits have held that a Defendant is Entitled to a Jury Instruction that Government Threats to Witnesses May be Regarded as Evidence of the Weaknese of the Gevernmeat’s Case. Although the trial court prevented the jury from hearing the Poor Bear testimony, there was evidence that the government threatened and intimidated Brown, Draper, Anderson and Day and that the threats induced Brown to testify falsely before the grand jury. The defense sought to put this evidence in perspective and requested the jury instruction set out above. The courts below held that Peltier was not en- titled to the instruction. In Untted States v. Vole, 485 F.2d 774 (7th Cir. ee ee Se eee 17 1970), the precise jury instruction which was requested here was held properly given, but the court reversed because a broader theory of the case instruction was refused. It has been held that a defendant is entitled to an instruction on his or her theory of the case, “even though the evidence may be weak, insufficient, inconsistent or of doubtful credibility.” Tatum v. United States, 190 F.2d 612, 617 (D.C. Cir. 1951). Ac- cord, United States v. Alfonso-Perez, 535 F.2d 1362, 1365 (2d Cir. 1976) and [/nited States v. Partin, 493 F.2d 750, 761-62 (5th Cir. 1974). Here, the impeaching testimony of the principal government witnesses was effectively precluded from the jury’s consideration by the tria: court’s refusal to instruct. V. The Court of Appeals has Vitiated the Control of the Ad- mission of Other Crimes Evidence to be found in Federal Rule of Evidence 404(b) and Required by Other Circuits. Since the adoption of the Federal Rules of Evidence in 1975, no rule has engendered such contrariety of judicial expression as 404(b).?° Some differences arise from the peculiar facts of the many cases reviewed; an attempt to reconcile and eliminate these variances in the details of application would be exhausting and likely futile. Differences that go to the limits of the rule, such as to scope (e.g., whether other crimes evi- dence must go to a material issue in the ease; whether 10 Rale 404(b) provides: Other Crimes, Wrongs, Or Acts. Evidence of other crimes, wrongs or acts is not sdmissible to prove the character of a persun in order to shdw that he acted in conformity therewith, It may, however. be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan. knowledge, identity, or absence of mistake or accident. 18 the list of permitted purposes to be found in the rule is “inelusory” or exhaustive) are of another order entirely. Not only are such differences capable of res- olution, but the varying views expressed in the array of appellate opinions offer no consistent guide to the conscientious trial judge on an issue of importance and frequent occurrence. Here, substantial evidence was admitted of “other crimes” (burglary of a home, theft, and alleged at- tempted murder of a police officer) in connection with an incident in Oregon. The incident occurred four months after the offense being tried, was proved with scrupulous attention to detail, and was offered for the ostensible purpose of demonstrating that Peltier was in flight a few months after the crimes charged and thus conscious of his guilt.” Admission of this evidence expands the “exception” in Rule 404(b) so broadly as to negate the rule itself. Proof of “flight” is not such a listed purpose. The sec- ond cireuit has stressed the view that the listed pur- poses are not exhaustive, but “inclusory,” United States vy. Williams, 577 F.2d 188, 192 (2d Cir. 1978) or “in- clusionary,” United States v. Benedetto, 571 F.2d 1246, 1248 (2d Cir. 1978). A view shared by the third, e.9-» United States v. Long, 574 F.2d 761, 766 (3d Cir. 1978), and ninth, e.g., United States v. Hearst, 563 F.2d 1331, 1336 n.3 (9th Cir. 1977), cert. denied, 485 U.S. 1000 (1978), circuits. The fifth circuit has taken a different and narrower view, e.g., United States v. 11 There were several other instances where the government was allowed to prove other crimes in addition to the one here used to illustrate the issue, e.g., that Peltier was facing charges of at- tempted murder in Wisconsin. (He was acquitted subsequent to the trial at issue, see opinion below n.6.) 19 Myers, 550 F.2d 1036, 1044 (5th Cir. 1977).% The eighth circuit has variously adopted both readings." ‘2 “Because the risk of prejudice is so great, we have held that there are two conditions that must be satisfied before evidence of other crimes may be admitted. First, the threshold prerequisites to admission must be met. There prerequisites are : (1) Proot of the other similar crimes must be plain, clear and convincing. (2) The other crimes must not be too remote in time from the charged offense, (3) The evidence of the other crimes must be introduced for a purpose sanctioned by Rule 404(b) of the Federal Rules of Evidence. (4) The element of the charged offense that the evidence of other crimes is introduced to prove must be a material issue in the case, (5) There must be a substantial need for the probative value of the evidence of the other crimes. See United States v. Taglione, 546 F.2d 194, 199 (5th Cir. 1977); United States v. Bloom, 538 F.2d 704, 708 (5th Cir, 1976); United States v. San Martin, 505 F.2d at 921-22; United States v. Broad- way, 477 F.2d at 994-95, Second, the probative value of the evi- dence of other crimes must outweigh the prejudice to the defendant that may result from its admission. Fed.R. Evid. 403;’’ 18 The eighth cireuit has two contradictory lines of ‘‘other erimes’’ authority, with virtually no cross-citation between them, A ‘‘test’’ was established in United States v. Clemons, 503 F.2d 486, 489 (8th Cir, 1974), echoing the fifth cireuit. Compare, ¢.g., United States v. Weir, 575 F.2d 668 (8th Cir. 1978) (reversing a conviction where threats to assassinate an informant were admitted in viola- tion of Fed.R.Evid. 403; Clemons not cited), and United States v. Jones, 570 F.2d 765 (8th Cir. 1978) (reversing the conviction of a physician for distribution of narcotics by prescription when other similar narcotic prescriptions were admitted; Clemons cited), with, ¢.g., United States v. Bohr (No. 78-1096) slip op. (8th Cir. July 12, 1978, (affirming conviction for wire fraud where similar crimina! act was relevant to identify under 404(b) ; Clemons cited), and United States v. Adcock, 558 F.2d 397 (8th Cir. 1977) (affirming Hobbs Act conviction where similar criminal acts established ‘‘intent’’; Clemons not cited). 20 No matter what view is taken as to the inclusory or exhaustive nature of the list of permitted purposes, this case poses the prior question of whether material- ity is a necessary prerequisite to any evidence of other crimes, This Court has repeatedly held that evidence of Hight is to be received, if at all, with great caution. “(We have consistently doubted the probative value in criminal trials of evidence that the accused fled the scene of an actual or supposed crime Wong Sun v. United States, 371 U.S, 471, 483 n.10 (1963), citing, e.g., Alberty v. United States, 162 U.S. 499 (1896) and Hickory v. United States, 160 U.S. 408 (1895). When the government chooses “other crimes’ evidence— which is itself a suspect mode of proof—as a means of showing flight, the possibility of prejudice is multiplied and the probative value correspondingly weakened. The series of inferences that must be drawn from flight before a material issue in a criminal trial can even be approached has recently been outlined by the fitih eir- cuit: “(1) from the defendants behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt con- cerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.” Myers, 550 F.2d at 1049. The conflict between Myers and this case is only one example of the differing approaches of the courts of appeals on this issue, Some differences go simply to details of application of Rule 404(b); here, there is a conflict as to the limits of the rule. The burgeoning body of inconsistent court of appeals opinions indicates that the administration of justice now requires this Court’s consideration of the boundaries of the rule. ee tn i ee call Mil lel Sl Dl OE ae ny CT ee oe ea es Pe ee il 21 VL The Decision Below Conflicts with the Decision of Other Courts of Appeals as to the Admissibility of Other Weapons Evidence. Evidence of numerous weapons, unrelated to the crime charged and unconnected to Peltier, were intro- duced by the government over strenuous objection.” The court of appeals held that the weapons were prop- erly admitted, in conflict with the view of other circuits. Only recently, the tenth circuit unanimously reversed the convictions of five defendants convicted of con- spiracy to violate the Hobbs Act, 18 U.S.C, § 1951 and possession of unregistered incendiary bombs, 26 U.S.C. § 5861(d), based upon the improper admission of one rifle against one of the codefendants. United States v. Warledo, 557 F.2d 721 (10th Cir. 1977). Accord, United States v. Reid, 410 F.2d 1223 (7th Cir. 1969) ; Thomas v. United States, 376 F.2d 564 (5th Cir. 1967) ; and Moody v. United States, 376 F.2d 525 (9th Cir. 1967). Cf., United States v. Robinson, 560 F.2d 507 (2d Cir. 1977) (en banc), cert. dented, 435 U.S. 905 (1978) (introduction of evidence of gun in possession 14The court of appeals amended its opinion upon denial of rehearing by adding a paragraph which stated that the admission of other weapons and other crimes evidence was harmless error because Peltier’s trial counsel didn’t object to most of it. See Appendix at 23a. This seems to ignore the pretrial record in the district court where a lengthy and broad motion in limine was filed, to exclude the evidence of other crimes and weapons which the defense anticipated the government would seek to introduce based on the way the trial was conducted in Cedar Rapids. The motion in limine was denied. Moreover, even a quick perusal of the record makes clear that one of the central topics of discussion between bench and bar was the admissibility of the other crimes and other weapons evidence. Specific objections were raised con- stantly. A few examples can be found at T. 152-6, 169-73, 814-18, 1692-732, 2133-44, 2148, 2172-91, 2195, 2434. 22 of defendant at time of arrest offered to prove iden- tity, held not prejudicial under Federal Rule of Evidence 403). CONCLUSION For all of the above reasons, it is respectfully prayed that the writ of certiorari be granted. Respectfully submitted, MIcHAEL FE. TiGar JOHN J. PRIVITERA 1302 18th Street, N.W. Washington, D.C. 20036 ARTHUR KINOY 76 N. Fullerton . Montclair, New Jersey 07042 A P P E N D I X WruiaM M. KunNsTLER 13 Gay Street New York, New York 10014 Counsel for Petitioner. Dated: December 4, 1978 i- la APPENDIX A Unitep States Court or APPEALS FOR THE EIGHTH CIRCUIT No. 77-1487 Unirep States or America, Appellee, Vv. Lreonarp Peitimr, Appellant. Appeal from the United States District Court for the District of North Dakota Submitted: April 12, 1978 Filed: September 14, 1978 Before Gisson, Chief Judge, Ross and StTrepHenson, Circwt Judges.* Ross, Circutt Judge. On June 26, 1975, two Special Agents of the Federal Bureau of Investigation, Jack Coler and Ronald Williams, were murdered on the Pine Ridge Indian Reservation in South Dakota. Leonard Peltier, Robert Eugene Robideau, Darrell Dean Butler, and James Theodore Eagle were charged with the murders in a two-count indictment for first-degree murder in violation of 18 U.S.C. §§ 2, 1111, and *This appeal was originally submitted to a panel of Judges Ross, Stephenson and Webster. Upon Judge Webster’s resignation from the court, the appeal was resubmitted to Chief Judge Gibson, and Judges Ross and Stephenson. 2a 1114, Robideau and Butler were jointly tried by a jury and were acquitted. The government dismissed the charges against Kagle. Subsequent to the Robideau-Butler trial, Peltier was tried by a jury, was convicted on both counts, and was sentenced to life imprisonment on each count, the sentences to run consecutively. He appeals. Peltier was not-a permanent resident of the Pine Ridge Reservation. His presence there in June of 1975 was the result of a political struggle between certain reservation members who supported the structure of tribal government, and supporters of the American Indian Movement (AIM) who advocated a different form of government. In an effort to alleviate the conflict, tribal elders had invited members of AIM to stay at the reservation. Leonard Peltier, Darrell Butler, Robert Robideau, Michael Anderson, Wilford Draper, Norman Charles, Norman Brown, and Joe Stuntz, all AIM members, accepted their invitation, They arrived in the spring of 1975 and stayed in an encampment on the reservation which became known as “Tent City.” In June of 1975, Special Agents Coler and Williams were engaged in felony criminal investigations on the Pine Ridge Indian Reservation. On June 25 and 26, they were attempting to locate and arrest four individuals, including James Theodore Eagle, who were charged with armed robbery and assault with a deadly weapon. Shortly before noon on June 26, Special Agent Williams, driving a 1972 Rambler, and Special Agent Coler, driving a 1972 Chevrolet, entered the Harry Jumping Bull Compound on the reservation.’ The agents were following three in- dividuals riding in a red and white van that had entered the ''The eompound consists of a number of houses and buildings, and is located a short distance off Highway 18 between Oglala and Pine Ridge, South Dakota. It is approximately a quarter of a mile northwest of Tent City. 3a compound shortly before them.’ The van stopped at a fork in the road leading to Tent City. The agents stopped at the bottom of a hill. Williams advised Coler on the radio that the occupants of the van were about to fire on them. Firing commenced, Other AIM members who were present at the Jumping Bull Compound or Tent City thereafter joined in the shooting. The agents took heavy fire. Over 125 bullet holes were found in their cars. In contrast, only five shell casings at- tributable to the agents’ guns were ever found at the scene. Both agents were wounded by bullets fired from a distance. Special Agent Coler was wounded by a bullet that traveled through the trunk lid of his car and struck his right arm. The force of the bullet almost took his arm off, rendering him completely disabled and causing him to lose blood rapidly. He crawled to the left side of his car, away from the gunfire. Williams was shot in the left shoulder. The bul- let traveled from his shoulder, under his arm and into his side. Although wounded, Williams removed his shirt and attempted to make a tourniquet for Coler’s arm. Williams at some point was also shot in the right foot. These wounds were not fatal. The agents were killed with a high velocity, smal. caliber weapon fired at point blank range. Williams attempted to shield his face from the blast with his right hand, turning his head slightly to the right. The murderer placed the barrel of his gun against Wil- liams’ hand, and fired. The bullet ripped through Williams’ hand, into his face, and carried away the back of his head. He was killed instantly. The murderer shot Coler, who was unconscious, across the top of the head. The bullet carried away a part of his forehead at the hairline. The shot was not fatal, however. The murderer then lowered his rifle a * The agents had been told that Eagle might be riding in a red vehicle. 4a few inches and shot Coler through the jaw. The shell ex- ploded inside his head, killing him instantly. The evidence against Peltier was primarily circum- stantial. Viewed in the light most favorable to the govern- ment,’ the strongest evidence that Peltier committed or aided and abetted the murders is as follows: i. The van that the agents followed into the Jumping Bull Compound was occupied by Peltier, Norman Charles and Joseph Stuntz. ». At the time, Peltier had access to information that he was being followed by FBI agents. One of the oceu- pants of the van, Norman Charles, had been picked up along with two other AIM members, Anderson and Draper, by Coler and Williams the day before. The three had been transported to Pine Ridge in Wil- liams’ car, and were later released after the agents were informed that none of them was Jimmy Eagle. 3. Peltier had reason to believe that the agents were looking for him, rather than Jimmy Eagle. He stipu- lated at trial that there was an arrest warrant out- standing, charging him with attempted murder. Upon his arrest in Canada months later for the murders of the agents, Peltier remarked that the two agents were shot when they came to arrest him. He also made other incriminating statements. ‘** «The verdiet of a jury must be sustained if there is substan- tial evidence, taking the view most favorable to the Government, to support it.’ ’’ amling v. United States, 418 U.S. 87, 124 (1974), quoting Glasser vy. United States, 315 U.S. 60, 80 (1942). As we pointed out in United States v. Lambros, 564 F.2d 26, 28 (8th Cir.), cert. denied, 430 U.S. 930 (1977), the same standard of review applies in cases where the conviction rests on cireumstan- tial evidence, because cireumstantia! evidence is equally as proba- tive of guilt as direet evidence. 5a 4. Michael Anderson, one of the AIM members who was firing at the cars from one of the houses in the Jumping Buil Compound, testified that after both sides had been shooting at one another from a distance, and at least one of the agents had been wounded, he saw Peltier, Robideau and Butler standing down at the agents’ cars. Peltier at the time was holding an AR-15. Shortly after he saw the three down at the agents’ cars, he began to walk back to Tent City, a distance of about a quarter of a mile. When he arrived at Tent City, Peltier, Robideau and Butler were already there, as was Williams’ car. F.B.I. agents who later searched the area recovered Williams’ badge and billfold on the ground near the junction of the roads leading to the houses and Tent City. It was at this junction that Peltier’s van had stopped shortly before the firing com- menced. 5. According to the doctor who performed the autop- sies, the agents were shot with a high velocity, small caliber weapon. Peltier’s AR-15, the civilian counter- part of the M-16, was the highest velocity weapon fired that day.* No other person was seen by any trial witness on June 26 with an AR-15. Peltier carried his AR-15 out with him when he and the other participants of the shoot-out escaped from the reservation and fled to the Rosebud Reservation, where they remained for some time before splitting up. Robideau, Charles and Ander- son went south after leaving Rosebud. Anderson testi- * When seen standing at the cars, Peltier carri Butler an M-1. Robideau had been seen on coke agen carrying a Commando Mark III, a .45 caliber semiautomatic weapon. The velocity of a commercially loaded .223 caliber cart- ridge fired from an AR-15 is 3200 feet/second, a .30/06 caliber cartridge fired from an M-1, 2700 feet/second. and a .45 caliber cartridge fired from a Commando Mark III over 1000 feet/second. 6a fied that he loaded their car with weapons, one of which was an AR-15, before they left South Dakota. On Sep- tember 10, 1975, the car exploded on the Kansas Turn- pike, and police recovered from the car the AR-15 which the government contended Peltier used on the day of the murders. §. Ammunition components linked ballistically to the same AR-15 were found at the crime scene. The bal- listics expert was unable to fire the AR-15 because it had been damaged in the explosion on the Kansas Turnpike. However, he was able to remove the bolt from it, place the bolt in another AR-15, and test fire the replacement AR-15. The expert testified that a .223 cartridge casing found in the trunk of Coler’s car had been loaded into and extracted from the AR-15. He also testified that a .22 caliber copper bullet jacket found in the ground underneath the bodies of Coler and Williams had rifling impressions consistent with the rifling of the barrel of an AR-15. There was no testimony to indicate that either Robideau or Butler was seen the afternoon of the murders with a weapon that fired .22 caliber bullets. 7. Wilford Draper, a member of the escape party that left Tent City the evening of the murders, testified that he overheard Peltier, Butler and Robideau discus- sing certain details of the murders on the evening of June 26. 1975. §. Peltier was stopped by police months later in the State of Oregon. He fled the scene, turning to fire on one of the police officers. The motor home in which he was riding was searched, and Special Agent Coler’s revolver was found in a bag bearing Peltier’s thumb- print. After a twenty-five day trial, Peltier was convicted by 7a a jury of both counts of first-degree murder. He alleges on appeal * that: 1. Certain evidence introduced at trial was so preju- dicial and inflammatory that its admission constituted a denial of due process; 2. The trial court refused to instruct the jury on his defense that he was a victim of an F.B.I. frame-up, and refused to allow him to introduce much of the avail- able evidence of F.B.I. misconduct, thereby depriving him of a fair trial and of his right to compulsory process; 3. The trial court’s refusal to reread testimony re- quested by the jury constituted an abuse of discretion: 4. The trial court had no jurisdiction to try him because the United States Government deliberately violated the Webster-Ashburton Treaty; 5. Prosecution is barred by the doctrine of collateral estoppel. * The appellate attorneys also seem to be raisi i the competency of trial counsel. Peltier was initially cna on appeal by his trial attorneys, who filed a brief on his behalf On November 2, 1977, this court permitted new counsel to enter the case. Peltier’s second set of attorneys, in oral argument argued that Peltier’s trial attorneys should have called FBI Director Clarence Kelley as a witness for the defense, and that their failure to do so was prejudicial to Peltier. We have carefull examined the record in the trial court and on appeal, and od concluded that the defendant’s trial counsel were ‘annie, capable, and informed, and engaged in sophisticated trial decisions on strategy. Their decision not to call Clarence Kelley, who did testify in the Butler-Robideau trial, was clearly such a tactical decision. We have read the transcri t of K ’ i the Butler-Robideau trial, and find ‘ie its salcaias to taieee trial was highly doubtful. The allegations of Peltier’s counsel on “nage amounts to no more than hindsight and second-guessing < one lawyer concerning trial tactics used by another lawyer eltier was equally well-represented at trial and on appeal ong We affirm. I Admission of Flight, Other Crimes, and Weapons Evidence In proving its case against Peltier, the government was required to introduce a great deal of evidence regarding the firearms used by the participants of the shoot-out. This evidence included the firearms in the possession of the dead agents and the AIM members on June 26, the firearms recovered upon a search of Tent City shortly after the murders, and the various ammunition components recovered upon a search of the entire crime scene shortly after the murders. Since the case against Peltier was circumstantial, the evidence was necessary to negate the participation in the actual murders by others who were admittedly present. In the course of introducing the admittedly relevant firearms evidence, the government offered evidence which the defendant describes as inadmissible other crimes and weapons evidence. Most of this evidence related to the cir- cumstances surrounding the discovery of the admittedly relevant firearms evidence described above. Defendant complains of the admission of this evidence, even though much of it was admitted without objection. A. Oruer Crimes Evipence The admissibility of other crimes evidence is governed by FED. R. EVID. 404(b), which provides: (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admis- sible for other purposes, such as proof of motive, op- portunity, intent, preparation, plan, knowledge, identi- ty, or absence of mistake or accident. 9a We have held that evidence of other crimes, wrongs, or acts that is vague and speculative is not admissible under Rule 404(b). United States v, Jones, 570 F.2d 765, 768 (8th Cir. 1978) ; United States v. Maestas, 554 F.2d 834 n.2 (8th Cir.), cert. denicd, 431 U.S. 972 (1977). Furthermore, an issue on which other crimes evidence is admissible must be raised at trial. United States v. Adcock, 558 F.2d 397, 402 (Sth Cir.), cert, denied, 434 U.S. 921 (1977); United States v. Maestas, supra, 554 F.2d at 837; United States v. Clem- ons, 003 F.2d 486, 489 (8th Cir, 1974). Evidence that is admissible under the terms of Rule 404(b) may nevertheless be excluded under the provisions of FED. R. EVID. 403, which provides: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumu- lative evidence. In reviewing a discretionary decision to admit evidence under Rule 403, we give great deference to the trial judge who saw and heard the evidence. United States v. Bohr. No. 78-1096, slip op. at 6 (Sth Cir, July 26, 1978) ; United States v. Weir, 575 F.2d 668, 670 (Sth Cir. 1978) ; United States v. Matlock, 558 F.2d 1328, 1332 (8th Cir.), cert. denied, 434 pee 872 (1977) ; United States v. Maestas, supra, 554 F.2d at 836. We will discuss each claim of erroneously admitted evi- dence separately. 1. Milwaukee, Wisconsin Incident At the trial, the parties stipulated to the following facts: On N ovember 22, 1972, Peltier was charged with attempted murder in Milwaukee, Wisconsin. He was arrested, pleaded 10a not guilty, and was released on bond, On July 29, 1974, he failed to appear for trial on the charge, his bond was for- feited, and a bench warrant was issued for his arrest. Pel- tier was aware of the outstanding arrest warrant for at- tempted murder and knew that if he were taken into custody by law enforcement officials, he would be returned to Milwaukee to stand trial. The defendant agreed to stipulate to these facts only after the district court rejected his argument that they were not relevant. The government argues that this evidence was admissible under Rule 404(b) to prove motive, because it tended to show why Peltier reacted with deadly force when followed by the F.B.I. agents. We agree. The key issue at trial was the identity of the murderer, and evidence tending to show motive was clearly relevant. United States v. Stover, 565 F.2d 1010, 1013 (8th Cir. 1977); Gregory v. United States, 365 F.2d 203, 205 (8th Cir. 1966), cert. de- nied, 385 U.S. 1029 (1967). Moreover, the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice, as is contended by Peltier on appeal. The evidence was highly probative, especially when considered in conjunction with a statement Peltier made after his arrest in Canada to the effect that the two agents were shot when they came to serve him with the Wisconsin warrant. Furthermore, the government took steps to minimize the danger of unfair prejudice. The fact that the person Peltier allegedly as- saulted in Wisconsin was an off-duty police officer was with- held from the jury. The stipulation was read to the jury at the end of the government’s case. Finally, the following cautionary instruction was given: Evidence has been admitted relating to other crimes, wrongs or actions alleged to have been committed by the defendant in this case. Such evidence is not to be ne a eS lla considered to prove the character of the defendant in order to show that he acted in conformity therewith on June 26, 1975. Evidence of a charge against the defendant in Wis- consin and his alleged flight to avoid trial was intro- duced to show a possible motive the defendant mav have had to avoid apprehension on June 26, 1975. The defendant is presumed to be innocent of the Wisconsin charge and the evidence relating to that charge must be considered by the jury only on the issue of motive. We hold that the district court did not abuse its discretion in admitting this evidence.® 2. Ontario, Oregon On November 14, 1975, Oregon State Police stopped two vehicles near Ontario, Oregon: a motor home and a Ply- mouth station wagon. Peltier was one of the occupants of the motor home, and fled the scene, turning to fire at the state trooper. Upon searching both vehicles, Oregon au- thorities recovered from the motor home Special Agent Coler’s revolver in a paper bag bearing Peltier’s finger- print, and from the station wagon several shell casings that had been fired from Coler’s revolver. she defendant alleges error in the admission of much of the other crimes” evidence offered by the government ro- lating to the Oregon incident. * Subsequent to the trial in the instant case Peltier i and acquitted of the charge of attempted a ae en officer in Milwaukee, Wisconsin. He now argues that his acquittal dramatically illustrates the lack of probative value of the evidence We disagree. The evidence is probative of Peltier’s state of mind on the day of the murders. That state of mind was not affected b the disposition of the charge subsequent to the murders Further. more, the cautionary instruction adequately cured any unfair prejudice which could have arisen f Wome the pending assault charge. rom the jury’s knowledge of 12a a. Evidence of flight In addition to the testimony that Peltier fled the scene, turning to fire at the arresting officer, the government intro- duced testimony that the following items were recovered upon a search of the vehicle: i. fourteen firearms, eight of which had obliterated serial numbers, and numerous boxes of shells; ii. tool boxes containing wiring, pocket watches with wires leading out of them, tools, pliers, and empty shell Casings; iii, pieces of paper in each vehicle upon which were written code numbers and words as follows: #510— bomb; #54—pigs; #527—ammo; #529—cops; #528 —dynamite; #524—roadblock. Both vehicles were equipped with CB radios, and the motor home was equipped with a scanner to pick up other frequencies; iv. nine hand grenades. In addition to the testimony, pictures of most of the items described in (i), (ii), and (iv) were also admitted into evidence. The defendant objected to the admissibility of much of this evidence ; the government contends that it was properly admitted as evidence of flight. It is well settled that flight of the accused subsequent to the commission of a crime is, in certain instances, “a circumstance proper to be laid be! »re the jury as having a tendency to prove his guilt.’’ Allen v. United States, 164 U.S. 492, 499 (1896). Accord, United States v. White, 488 F.2d 660, 662 (8th Cir. 1973), and cases cited therein. However, in the face of Supreme Court decisions expressing doubt as to the probative value of flight, see Wong Sun v. United States, 371 U.S. 471, 483 n.10 (1963); Alberty v. United States, 162 U.S, 499, 511 (1896) ; Hickory v. United States, 160 U.S. 408, 418 (1896), 13a the lower courts have generally scrutinized the facts of each case to determine whether the jury should be given the opportunity to draw an inference of guilt from a de- fendant’s flight. The probative value of flight evidence has recently been analyzed in United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977), There the court held that the probative value of flight as circumstantial evidence of guilt depends upon the degree of confidence with which four inferences can be drawn: (1) from the defendant’s be- havior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged. The validity of drawing these inferences in turn depends upon the number of evidentiary manifestations suggesting defendant’s decision to flee was prompted by considerations related to the crime in question, As the court stated in Batley v. United States, 416 F.2d 1110, 1115 (D.C. Cir. 1969), “guilt, as a factual deduction, must be predicated upon a firmer foundation than a combination of uneluci- dated presence and unelucidated flight.” We hold that there was a sufficient number of such evi- dentiary manifestations to make evidence of flight and of resistance to arrest’ highly probative of consciousness of guilt, and hence guilt itself in this instance. First, Peltier fled the scene of the crime immediately after its commission. His actions in Oregon were a continuation of that immedi- ate flight. Second, the fact that the motor home and station 7 Evidence that the defendant resisted arrest is similarly ad- missible as showing consciousness of guilt. United States v. Graham, 548 F.2d 1302, 1313 n.13 (8th Cir. 1977). l4a wagon were traveling arsenals linked by communication de- vices and code words designed for avoidance of arrest was significant evidence of Peltier’s state of mind. Finally, and most important, evidence linking Peltier to the murders was discovered upon a search of the vehicle from which he fled. The presence in the motor home of Agent Coler’s revolver, in a bag having Peltier’s fingerprint on it, was one of the key pieces of evidence against Peltier. Under these circum- stanees, we find that the evidence of flight was highly probative. Peltier argues that the evidence of flight was inadmissible because it did not relate to flight occurring immediately after the murders, and because the government did not show that at the time of the flight in Oregon, the defendant had been charged with, or knew he was being sought for, the murder of the two agents.* In support of his argument, he cites United States v. White, supra, 488 F.2d 660, and United States v. Jackson, No. 77-1796 (7th Cir. March 29, 1978). In United States v. White, supra, 488 F.2d at 662, the de- fendant fled from police attempting to arrest him for an incident that had oceurred over five months previously. There was no evidence that at the time of the flight he knew he was being sought for the crime charged. We held in the context of that case that admission of the evidence of flight and the giving of a flight instruction was not appro- priate because evidence of flight was not sufficiently reliable ’ There was evidence that at the time of his arrest several months after the Oregon incident, Peltier was in fact aware that he was being sought for the murders of the two F.B.I. agents. One of the officers who arrested Peltier in Canada testified that Peltier acknowledged he knew he was wanted for the murders. Peltier also stated he would have resisted arrest by deadly force if he had known the police officers were nearby, saying: ‘‘I have got nothing to lose * * ®,’’ r= ———SEE= 15a as an indication of guilt. Within the framework of the Myers analysis, United States v. Myers, supra, 550 F.2d 1036, the evidence in White was simply too speculative to allow the jury to draw an inference of consciousness of guilt concerning the crime charged. White does not require that where flight occurs a sub- stantial time after the crime, evidence of that flight is properly admitted only if the government can prove with direct evidence that the defendant knows he is being sought for the crime charged. As the foregoing discussion indi- cates, there was sufficient circumstantial evidence that the defendant knew he was wanted for the murders of the F.B.1. agents. Peltier also argues that, nothwithstanding the relevance of the evidence, its probative value was substantially out- weighed by the possibility of prejudice, and therefore it was inadmissible. We disagree. As we stated above, the evidence in this instance was highly probative. In the con- text of this case, the evidence did not prejudically distort the general case against the defendant. As we related above, evidence pertaining to a great number of firearms and am- munition components was admitted as part of the govern- ment’s case without objection by the defendant. The Pine Ridge shoot-out had many participants and there was no dispute as to the large number of firearms possessed by the AIM members. This additional firearms testimony could not have had nearly as strong an impact on the jury as in the cases cited by the defendant for the proposition that fire- arms evidence is highly prejudicial. See, e.g., United States v. Robinson, 560 F.2d 507, 513-14 (2d Cir. 1977) (en banc), cert. denied, 98 S. Ct. 1451 (1978); United States v. War- ledo, 557 F.2d 721, 724-26 (10th Cir. 1977). Furthermore, the evidence was not presented in an inflamatory manner; in relation to the length of the trial, the time necessary for its presentation was brief. See United States v. Maestas, supra, 554 F.2d at 837 n.4. Finally, an elaborate cautionary instruc- 16a tion® was given, warning the jury against placing undue reliance on flight as evidence of guilt. Finally, Peltier argues he offered to stipulate to his presence in Oregon and to the fact he was in flight, and that had the court accepted his offer to stipulate, other evi- dence of the Oregon incident would have been unnecessary. As a general rule, the government is not bound by the de- fendant’s offer to stipulate. United States v. Spletzer, 535 F. 2d 950, 955 (5th Cir. 1976); United States v. Caldwell, 543 F.2d 1333, 1359 n.134 (D.C. Cir. 1974) ; United States v. Brickey, 426 F.2d 680, 686 (8th Cir.), cert. denied, 400 US. 828 (1970). As stated long ago by the court in Parr v. United States, 255 F.2d 86, 88 (5th Cir.), cert. denied, 358 U.S. 824 (1958): The reason for the rule is to permit a party “to present to the jury a picture of the events relied upon. To substitute for such a picture a naked admission might have the effect to rob the evidence of much of its fair and legitimate weight.’ *The jury was instructed that: The intentional flight or concealment of a defendant imme- diately after the commission of a crime, or after he is accused of a crime that has been committed, is not of course sufficient in itself to establish his guilt; but is a fact which, if proved, may be considered by the jury in the light of all the other evidence in the case, in determining guilt or innocence. Whether or not evidence of flight or concealment shows a consciousness of guilt, and the significance to be attached to any such evidence, are matters exclusively within the province of the jury. In your consideration of the evidence of flight or conceal- ment you should consider that there may be reasons for this which are fully consistent with innocence. These may include fear of being apprehended, unwillingness to confront the police, or reluctance to appear as a witness. Also, a sense of guilt does not necessarily reflect actual guilt. 17a As the court pointed out in United States v. Spletzar, supra, 535 F.2d at 955, however, this rule is subject to the provisions of FED, R. EVID. 403. The Advisory Com- mittee in its notes accompanying Rule 403 suggested that: In reaching a decision whether to exclude on grounds of unfair prejudice * * * [t]he availability of other means of proof inay also be an appropriate factor. As the court pointed out in United States v. Spletzer, offers to stipulate in deciding whether to exclude or admit evidence under Rule 403. Cf. United States v. Cook, 538 F.2d 1000, 1005 (3d Cir. 1976). After careful analysis, how- ever, we conclude that the district court did not abuse its discretion in refusing to exclude the government’s evidence relating to the Oregon incident merely because of defend- ant’s offer to stipulate. The defendant never indicated a willingness to stipulate to any of the details of his flight, but only to the flight itself. Such a stipulation, barren of any detail, would have robbed the government of most of the probative value of the admissible flight evidence as tending to show consciousness of guilt of the murders. If, in fact, the evidence of the weapons found in the Oregon incident was inadmissible, in view of all of the other weapons introduced into evidence without objection, the addition of these weapons was, in our opinion, harmless error beyond a reasonable doubt. b. Unrelated robbery of ranch house The government introduced testimony that on or about November 14, 1975, a .30/30 rifle and a pickup truck were stolen from a residence near Ontario, Oregon. Peltier’s fingerprints were found in the residence. When Peltier was apprehended in Canada, he had in his possession the .30/30 rifle stolen from Oregon. The government argues that this testimony was relevant to prove Peltier was indeed the person who fled from the 18a motor home in Oregon and to show flight. Because Coler’s revolver was found in the motor home, we agree evidence proving Peltier’s presence there was relevant. We also agree that Peltier’s actions of arming himself and stealing a vehicle for transportation were relevant to show con- tinuing flight. Peltier argues that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, especially in light of his willingness to admit his presence in Oregon. The other crimes evidence was not more highly probative of Peltier’s presence in Oregon than his admission would have been, and the evidence of flight was essentially cumulative. Even if we held that the trial court abused its discretion in admitting this evidence, how- ever, again we are convinced the error was harmless be- yond a reasonable doubt. United States v. Weir, supra, 575 F.2d at 671. See Harrington v. California, 395 U.S. 250 (1969) ; Chapman v. California, 386 U.S. 18 (1967); FED. R. EVID. 103 The evidence of Peltier’s guilt was strong. The evidence in question was but a miniscule portion of the trial. Moreover, a cautionary instruction was given.” B. Weapons EvipencrE The government, in addition to offering into evidence certain firearms that had been fired by various participants of the shoot-out at Pine Ridge, also introduced evidence relating to the circumstances surrounding the recovery of 10 The jury was instructed that: Evidence relating to the Oregon incidents and the defend- ant’s alleged actions in connection with those incidents was also admitted for limited purposes. First, you may consider it insofar as you may find it relates to items of physical evidence that have been connected to the crime scene. Second, you may consider evidence of defendant’s alleged actions in the Oregon incidents in determining whether he was in flight to avoid prosecution or for some other purpose. 19a those firearms. Included in the government’s presentation was evidence of other firearms and explosive devices. Peltier vigorously disputes the admissibility of this evi- dence, and argues that its prejudicial impact on the jury mandates reversal of his conviction. 1. Wichita, Kansas As we stated above, the escape party fled to the Rosebud Reservation after the murders and remained there for a time before splitting up. Robideau, Charles, and Anderson then proceeded south, and the car in which they were rid- ing exploded on the Kansas Turnpike. Police recovered a large number of weapons and explosives from the car, in- cluding the AR-15 linked to the erime scene and Special Agent Coler’s rifle. Peltier was not an occupant of the car and was not in the vicinity. Admitted into evidence were three of the firearms recovered at the scene of the explosion, several pictures of the explosion-damaged vehicle, several pictures of the eight or more firearms recovered from the vehicle, and several pictures of shells and of hand grenades found at the scene. Testimony of the details of the police search of the area and the discovery of the items admitted was heard by the jury. In his brief, Peltier does not clearly articulate the specific evidence relating to the Wichita incident to which he ob- jects. At trial, he objected to the relevance of the pictures of the vehicle after the explosion. We hold that the district court properly found the pictures to be relevant to explain the condition of the weapons introduced into evidence at the trial. A crucial question was whether the .223 casing found in Coler’s trunk was fired from the AR-15 found in Wichita. The ballistics expert testified that he was unable to fire the weapon because of its condition. He was, how- ever, able to remove the bolt, place it on another AR-15, and conduct limited comparisons. 20a Defendant also objected to the pictures of the hand grenades on the grounds of relevance and prejudicial im- pact. The government argued that the hand grenades found at Wichita were relevant to link the occupants of the vehicle to certain firearms found at the scene of Pine Ridge. We agree with the trial court that the pictures were relevant, and that their probative value was not substantially out- weighed by the danger of unfair prejudice to the defend- ant. Both sides stipulated that Peltier was not present at Wichita at the time of the explosion. We do not agree that this evidence caused the jury to speculate about other bad acts attributable to him, as the defense contends. Peltier argues generally that the introduction of firearms evidence was highly prejudicial. However, as we stated earlier, Peltier does not make clear which of the Wichita evidence he claims was erroneously admitted. He did object at trial to Ex. 34-A, the AR-15 found in burned condition at Wichita, as irrelevant. We hold that the district court did not err in finding that Ex. 34-A was relevant. The government contended that it was the AR-15 carried by Peltier at Pine Ridge on the day of the murders and offered ballistics evidence linking it to the murders. At the trial, Peltier did not object when the testimony and pictures of the eight or more firearms recovered from the vehicle were introduced by the government. Nor did he object when Ex. 30-A, Special Agent Coler’s .308 rifle or Ex. 30-1, a firearm found in burned condition at Wichita, were offered. He stipulated to the admissibility of Ex. 30- AA, a .308 rifle, as a replica of Agent Coler’s .308 rifle when it was in good condition. Even if we construed Peltier’s brief on appeal to raise an objection to all of this evidence relating to the Wichita incident, we would hold that the admission of the evidence was not plain error. The circumstances of the recovery of the AR-15 and Coler’s rifle were relevant. The firearms 2la evidence could not be labeled highly inflammatory and prejudicial, in light of the wealth of firearms evidence ad- mitted previously without objection. Moreover, Peltier was not present when the explosion and recovery of the firearms occurred. Finally, Peltier offered to stipulate to the discovery of the AR-15 and Coler’s rifle in Kansas. The government rejected the offer. As we hold above, the government gen- erally is not bound by an offer to stipulate, and we are not convinced that this evidence requires a different rule. 2. Rosebud On September 5, 1975, F.B.I. agents went to the Rosebud Indian Reservation, located about 180 miles east of the Pine Ridge Reservation, to arrest five persons charged with assault with a deadly weapon. While conducting a search incident to the arrest of several persons," they recovered Special Agent Williams’ .357 service revolver and several rifles linked ballistically to the case. Testimony revealed that the following items were found: a. seven firearms, several of which had obliterated serial numbers (the serial numbers on Special Agent Williams’ service revolver and on Ex. 29-A, the M-1 .30 caliber Gerand rifle which Butler carried on the day of the murders were obliterated) ; b. a knapsack full of dynamite and hand grenades; ¢c. a suitease full of blasting caps; d. a bag containing spent rounds and live ammuni- tion for various calibers; e. walkie-talkie radios. Peltier again alleges that the evidence of unrelated fire- arms and other weapons was unduly prejudicial because . "One of those present at the Rosebud Reservation was Darrell utler. 22a of its inherently infammatory nature, arguing that its sole effect was to cause the jury to speculate about other bad acts of the defendant. Again, no objection was made to the admissibility of any of this evidence. Much of it was clearly relevant and strongly probative. Special Agent Williams’ revolver, six spent cartridges from Williams’ revolver, six spent cart- ridges from Special Agent Coler’s revolver, the M-1 rifle carried by Butler on the day of the murders, and the 44 Ruger carbine used by Joe Stuntz and carried out of Pine Ridge by Michael Anderson on the day of the murders were all seized at Rosebud. The relevance of the remaining evidence is questionable. Assuming without deciding that it was erroneously ad- mitted, we hold there was no plain error. No pictures or demonstrative evidence were admitted—only testimony, the purpose of which was to detail the discovery of the evidence directly related to the Pine Ridge episode. The parties agreed that Peltier was not present at Rosebud on the day the evidence was seized; the testimony revealed possession of weapons and explosive devices by other per- sons, and was not unfairly prejudicial to the defendant. United States v. Graham, supra, 548 F.2d at 1313. 3. Alberta, Canada On February 7, 1976, Peltier was arrested in Canada. The arresting officer testified that at the time of his arrest, Peltier had in his possession the .30/30 rifle stolen in Oregon, other property stolen from the Oregon ranch house, two pistols, and an M-1 semiautomatic rifle. At the trial, Peltier made no objection to the admission of the two pistols or the .30/30 rifle found in his possession at the time of his arrest. Likewise, he did not object to the testimony regarding his possession of the property, includ- ing the .30/30 rifle stolen from the Oregon ranch house, or 23a his possession of an M-1 semiautomatic rifle. We hold that the admission of this evidence was not plain error. 4. Not Prejudicial Error Ordinarily the admission into evidence of weapons, or pictures of weapons, which are not directly related to the crime, and to which proper objection is made, is prejudicial to the defendant and in many cases it has been held to be reversible error. See United States v. Robinson, supra, 560 F.2d at 513-16; United States v. Warledo, supra, 557 F.2d at 725, and cases cited therein. In this case, however almost all of the weapons, and some pictures which were not direct- ly related to the crime, were admitted without objection. Some of these weapons and pictures of weapons were ob- jected to by the defendant and as to these exhibits we hold the admission to be harmless error for these reasons: First, there were many weapons which were admitted without objection or were properly admitted as being found or used at the scene of the crime. The addition of the pictures and weapons which were not directly related to the crime and to which Peltier’s counsel objected, could only be held to be cumulative and therefore not prejudicial. Secondly, the direct and circumstantial evidence of Peltier’s guilt was strong and, in our opinion, the admission of these additional exhibits did not prejudice the defendant’s chances for acquittal. II F.B.L Frame-up The defense theory at the trial was that shortly after the murders, agents of the F.B.I. focused upon Peltier as a principal suspect, and thereafter conspired to manufacture evidence against him, resorting to threats, intimidation, and subornation in an effort to secure his conviction. On appeal, 24a Peltier contends that the district court ruled inadmissible the bulk of his proof of fabricated evidence and refused to charge the jury on the law applicable to the defense theory of the case, thereby depriving him of his right to compul- sory process and to a fair trial. A. RervusaL To Give Derense INSTRUCTION The instruction which the court refused to give, De- fendant’s Propoed Jury Instruction No. 19, read as follows: Testimony has been adduced in this case which if believed by you shows that the Government induced witnesses to testify falsely. If you believe that the Government, or any of its agents, induced any wit- ness to testify falsely in this case [or in any related case], this is affirmative evidence of the weakness of the Government’s case. Defendant contends the court erred in refusing to give this instruction, citing certain evidence admitted at trial allegedly proving the frame-up and several cases which stand for the proposition that the defendant in a criminal case is entitled to have presented to the jury instructions encompassing any theory of defense which is supported by law and which has some foundation in the evidence, how- ever tenuous. See United States v. Brown, 540 F.2d 364, 380-81 (8th Cir. 1976); United States v. Nance, 502 F.2d 615, 619 (8th Cir. 1974), cert. denied, 420 U.S. 926 (1975) ; United States v. Vole, 435 F.2d 774, 776-77 (7th Cir. 1970). We reject defendant’s contention that the trial court erred in refusing to give the proposed instruction. In the first place, proposed Instruction No. 19 does not incorpo- rate what defendant contends was his theory of defense: that the government framed him by manufacturing evi- dence and inducing witnesses to testify falsely. The pro- posed instruction is essentially one relating to the credi- bility of witnesses, and was dealt with in the court’s gen- nee 25a eral instructions 30, 38, and 45 on impeachment and credi- bility. The principle espoused in Brown and Nance was meant to apply to a more comprehensive defense instruc- tion or series of defense instructions. As the court stated in Laughlin v. United States, 474, F.2d 444, 455 (D.C. Cir. (1972), cert denied, 412 U.S. 941, reh. denied, 414 U.S. 882 (1973), in refusing to apply the principle to the proposed instruction that the jury must acquit the defendant if it believed defense testimony denying guilt. What is required before the theory of the case rule comes into play is a more involved theory involving “law” or fact, or both, that is not so obvious to any jury. It is a matter of common sense that a government prosecu- tion based on false testimony is a “weak”? one. In the second place, there is no evidentiary support for the instruction as written. Three critical government wit- nesses, Anderson, Draper, and Brown, who participated in the events of June 26 at Pine Ridge, did testify on cross-examination that F.B.I. agents threatened, intimi- dated, or physically abused them while questioning them in the initial stages of the investigation about their knowl- edge of the murders. Brown, in his testimony as a witness for the defense, also stated that he testified falsely before the grand jury as a result of fear of the F.B.J. All three witnesses testified that when they were interviewed, at early stages of the investigation, they answered the F.B.I.’s questions in a manner inconsistent with the truth for one reason or another, However, upon further questioning at the trial by the government attorney, they stated that the testimony they gave at the trial was the truth, as they best remembered it. Thus, their testimony provided no support for the proposed defense instruction that the government 26a induced them to testify falsely in this trial or in a related trial.” Since the proposed instruction was essentially a credi- bility instruction already covered by the instructions given to the jury, and since there was no evidence that the gov- ernment induced the witnesses to testify falsely at the trial, we perceive no error in the court’s failure to give the proposed instruction. Failure to Give a More Comprehensive Theory of the Defense Instruction. The next issue is whether the trial court should have given a more comprehensive theory of the defense instruc- tion. Peltier relies heavilfy on United States v. Vole, supra, 435 F.2d at 776, where the court found the failure to give the following instruction reversible error: You are instructed that it is the defendant Vole’s theory of this case that Charles Masini conspired with other persons to frame him for a counterfeiting conspiracy. If the facts adduced in support of the defendant Vole’s theory create in your mind a reason- able doubt of his guilt of these charges, then you must find the defendant Vole not guilty of these charges. Peltier, vhile attempting to prove his theory that he was the » -tim of an F.B.I. frame-up, did not request a similar instruction. We find the court’s failure to give such an instruction was not plain error. Cf. United States v. Hamilton, 420 F.2d 1096, 1098-99 (7th Cir. 1970). We have concluded that the jury could not have been misled by the failure to receive a theory of defense instruction. The court’s instructions clearly stated the government’s ‘? Brown also stated that he lied to the grand jury. However, he affirmed, after his testimony regarding lying to the grand jury, that his testimony at trial was the truth. ae ee 27a burden of proof, the matter of credibility of witnesses was covered in great detail, and defense counsel vigorously asserted the theory of defense throughout the trial and in closing argument in an effort to discredit the govern- ment’s case. We note, furthermore, that Peltier’s contentions of manu- factured evidence are far from convincing, The district court allowed Peltier to present the following evidence relating to this theory of defense. 1. Discovery of the .223 caliber casing. The .223 caliber cartridge casing allegedly found in the trunk of Coler’s car was critical evidence against Peltier. In an affidavit used in the Canadian extradition proceedings, F.B.I. Agent Cunningham stated that he had found the .223 cartridge easing in Coler’s trunk. However, a 302 report * prepared by Cunningham on June 29, 1975, failed to document dis- covery of the casing. Cunningham later recanted that por- tion of his affidavit relating to his discovery of the cart- ridge. Other evidence presented at the trial strongly contra- dicts Peltier’s claim that the cartridge was not found in Coler’s trunk. Winthrop Lodge, an F.B.I. fingerprint ex- pert, testified that he found the .223 cartridge casing in the trunk of Coler’s car on June 29, 1975, when he was examining the car for fingerprints. He produced his hand- written field notes, which documented his discovery. He further testified that the car had been searched and had been towed to a garage in Hot Springs, South Dakota. He turned the casing over to Cortlandt Cunningham, who began his examination of Coler’s vehicle immediately after Lodge finished. The fact that Cunningham signed an aff- ** A 302 report is an F.B.I. form on which are transcribed notes or recollections of F.B.I. agents made in the course of their investigations. 28a davit that he had found the cartridge casing was merely a technical error. 2. Sighting of Peltier and Eagle. Special Agent Coward testified that late in the afternoon on the day of the mur- ders,’* he saw through the telescopic sight on his rifle two individuals, one of whom he identified as the defendant, at the scene of the crime. Coward also interviewed BIA Officer Stoldt, who was with him when he sighted the de- fendant. In his 302 report, which showed the date of the interview as June 28, 1975, Coward stated that Stoldt told of sighting two persons, one of whom looked like Jimmy Eagle, through his binoculars. Coward interviewed Stoldt again on September 4, 1975, and reported that Stoldt was now positive that he had seen Eagle and had also seen Peltier on June 26th. Stoldt was called as a defense wit- ness, denied that he talked to Coward on June 28, and stated that he was uncertain on June 26 that one of the persons he sighted was EKagle. Peltier contends that the discrepancy between Coward’s and Stoldt’s accounts was proof that Coward participated in the frame-up by falsely recording evidence. Again, however, the government offered an explanation for the apparent discrepancy. Stoldt testified that he talked to Coward only on June 26 and September 4, 1975, and not on June 28, Coward’s testimony at trial was consistent with Stoldt’s; he stated that he interviewed Stoldt and dictated his 302 report on June 26, and that the secretary simply made a yping error in dating the report June 28. Both witnesses at trial reaffirmed their sightings of Eagle and Peltier on June 26. In his second 302 of November 4, Coward wrote: “Stoldt stated that during the first state- ment he had given to the F.B.I. a few days after the shoot- ing of the agents, he told the agents then * * * that he saw Jimmy Eagle in the group that he had just identified.’ ”’ ‘* The agents were murdered at approximately 12:00 noon. LE NS LOLA AL IG PAB OGLE EI POEL ETON A sw 29a (Emphasis added.) Coward explained that when he wrote the second 302, he dated Stoldt’s statement by referring back to the first 302 which showed his first interview as being on June 28. He also stated that on further reflection, he remembered that his first interview with Stoldt was on June 26. 3 Association of .223 Cartridge Casing with AR-15. An © October, 1975, F.B.I. lab report contained a finding that the .223 cartridge casing received from the trunk of Coler’s car could not be associated with any of the weapons which had been submitted to it for analysis. However, a February, 1976, F.B.I. report contained a finding that the .223 casing could be associated with the Wichita AR-15. Peltier describes as “mysterious’’ the association of the .223 casing with the Wichita AR-15 four months after a report which concluded that no association could be found. However, the firearms expert, Evan Hodge testified that he first began to examine Ex. 34-B, the .223 cartridge casing, in December of 1975 or January of 1976. Defense counsel did not cross-examine him on the truth of this statement. Because the instructions to the jury clearly set ont the government’s burden of proof, because the defense counsel stressed the theory of defense th-oughout the trial and in closing argument, and because of the nature of the defen- dant’s proof of the alleged frame-up, we find no plain error in the court’s failure to give a theory of the defense instruction. B. Dentat or Ricut to Computsory Process The trial court excluded certain evidence which Peltier contends was vital to his defense, stating that: [T]he Court’s position with reference to evidence to be offered by the defense is simply that evidence 30a relative to the issues and the evidence presented by the government will be admitted. I will state, however, that witnesses who have testified will not be impeached by a showing of misconduct of the Federal Bureau of Investigation unless that misconduct relates to the testimony of the individual witnesses who have testt fied or unless that misconduct relates to exhibits that have been received in evidence. (Emphasis added.) The most significant evidence excluded was the testimony of Myrtle Poor Bear and Jimmy Eagle. 1. Jimmy Eagle Episode. Jimmy Kagle testified in an offer of proof that he was not on the Pine Ridge Reserva- tion on June 26, 1975. He was later arrested on another charge, and FB. agents who questioned him threatened to have him indicted for the murders if he did not cooperate in the investigation. He did not cooperate and was later indicted. As a result of the F.B.I. threats, his attorney warned him to remain silent at all times because the gov- ernment would probably place informers in his cell. After Eagle had been incarcerated for a time, the gov- ernment obtained statements of four of his cellmates re- counting Eagle’s description to them of the events of June 26. Eagle testified in the offer of proof that he never made any of the statements attributed to him. Peltier contends the statements of the four cellmates were so thorough, and conformed so completely to the F.B.I.’s theory of the mur- ders, that they impel the inference the F.B.I. concocted the statements and solicited the cooperation of four felons who desired favorable treatment. 2. Myrtle Poor Bear Episode. In February and March, 1976, Myrtle Poor Bear signed three affidavits which re- lated her eyewitness account of the murders of the two agents on June 26, 1975. Two of these affidavits were con- sidered by Canadian officials in the extradition proceedings, In testimony given outside of the presence of the jury at 3la the trial, Poor Bear disclaimed virtually every allegation contained in the affidavits. She testified that she had been forced to sign the affidavits, which were prepared by the F’.B.I., under threats of physical harm. The court excluded the proffered testimony under Rule 403 of the Federal Rules of Evidence. It found that the evidence was not material, and that any relevance it might have was outweighed by the danger of confusion of the issues and misleading the jury. Peltier contends that the trial court, in excluding the Jimmy Eagle and Myrtle Poor Bear testimony, denied him his right to compulsory process. We disagree. In Washington v. Texas, 398 U.S. 14, 23 (1967), the Supreme Court held that the sixth amendment right to compulsory process includes, in appropriate circumstances, the right to introduce relevant and material testimony from a witness qualified to testify under an anpropriate standard of credibility. The Court reaffirmed the impor- tance of allowing the defendant to present his defense in United States v. Niwon, 418 U.S. 683, 711 (1974), stating that: The right to the production of all evidence at a criminal trial similarly has constitutional dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial the right “to be con- fronted with the witnesses against him” and “to have compulsory process for obtaining witnesses in his favor.’’ Moreover, the Fifth Amendment also guaran- tees that no person shall be deprived of liberty with- out due process of law. It is the manifest duty of the courts to vindicate those guarantees, and to accom- plish that it is essential that all relevant and admis- sible evidence be produced. However, the right of a defendant to introduce the testi- mony of witnesses in his behalf is not absolute. As the 32a Supreme Court noted in Chambers v. Mississippi, 410 U.S. 284, 302 (1973): Few rights are more fundamental than that of an accused to present witnesses in his own defense. E.g., Webb v. Texas, 409 U.S. 95 (1972); Washington v. Texas, 388 U.S. 14, 19 (1967); In re Oliver, 333 U.S. 257 (1948). In the exercise of this right, the accused, as is required of the State, must comply with estab- lished rules of procedure and evidence designed to assure both fairness and reliability in the ascertain- ment of guilt and innocence. An analogous case is United States v. Nobles, 422 U.S. 225, 241 (1975), in which Justice Powell made this observation: “The Sixth Amendment does not confer the right to present testimony free from the legitimate demands of the adver- sarial system; one cannot invoke the Sixth Amendment as a justification for presenting what might have been a half-truth.” Under the Federal Rules of Evidence, the trial court has broad discretion in determining the relevancy and ad- missibility of evidence. United States v. Briscoe, 574 F.2d 406, 408 (8th Cir. 1978); United States v. Bad Cob, 560 F.2d 877, 880 (8th Cir. 1977). It is only where the trial court excludes relevant cvidence wilhout sufficient justifi- cation that the defendan’s consitutional right to compulsory process is violated. See United States v. Melchor Moreno, 536 F.2d 1042, 1045-46 (5th Cir. 1976). Exclusion of the evidence proffered by Peltier was justifiably excluded in this instance under the provision of FED. R. EVID. 403. The evidence was only minimally relevant. Neither Jimmy Eagle nor Myrtle Poor Bear testified as a govern- ment witness against Peltier. Furthermore, Peltier made no showing that the integrity of the government’s evidence against him was in any way tainted by the Myrtle Poor Bear and Jimmy Eagle episodes. 33a Peltier argues that the evidence was relevant to show bias on the part of government witnesses Anderson, Draper, and Brown. He argues that Poor Bear’s and EKagle’s testimony, if believed by the jury, might have caused the jury to speculate further as to whether the knowledge Anderson, Draper, and Brown testified to was implanted in their minds by coercive F.B.I. interrogation. It is true that “[e]vidence tending to show a substantial reason for bias or interest in an important witness is never collateral or irrelevant. It may be * * * the very key to an intelligent appraisal of the testimony of the [witnesses].’’ Barnard v. United States, 342 F.2d 309, 317 (9th Cir. 1965). See Davis v. Alaska, 415 U.S. 308, 316-17 (1974); Johnson v. Brewer, 521 F.2d 556, 561 (8th Cir. 1975). How- ever, Eagle’s and Poor Bear’s allegations of F.B.I. harass- ment, even if true, shed very little, if any, light on the credibility of other witnesses, since the trial court allowed full inquiry into the dealings of Anderson, Draper, and Brown with the F.B.I. In light of the full presentation to the jury of F.B.I. actions which might have caused bias on the part of these three witnesses, the testimony of Poor Bear and Eagle would only have been cumulative. Peltier also argues that the Poor Bear and Eagle testi- mony was admissible to show the intention of the F.B.I1. to bring about his conviction, no matter what the cost. This issue is a more difficult one. As we stated earlier, Peltier’s theory of the case was that the F.B.I. framed him by manufacturing evidence and inducing witnesses to tes- tify in accordance with its theory of the murders, The Poor Bear and Eagle testimony was certainly consistent with that theory. However, we do not find an abuse of discretion on the part of the district eourt in excluding the evidence. The district court weighed the following factors: a. the defendant’s failure to point to specific evi- dence used against him, the reliability of which was directly affected by the Poor Bear or Eagle episodes; 34a b. the lack of probative value of the proffered evi- dence. i. Myrtle Poor Bear. It is apparent, from reading the trial transcript, that Myrtle Poor Bear was not a reliable witness. Her testimony was at all times very vague, and she often responded that she could not remember. Indeed, defense counsel, anticipating that she would be called as a witness for the government, described her in his opening statement as a “witness whose mental imbalance is so gross as to render her testimony unbelievable.’’ ii. Jimmy Eagle. In addition to offering Eagle’s testi- mony, the defense also called two of the four cellmates who gave the allegedly controverted statements to the gov- ernment. Both witnesses affirmed the truth of their earlier statements to the F.B.I., and denied that the F.B.I, in- duced them to make false statements.’* There was thus no real proof that the F.B.I. solicited statements from the four cellmates. There was only proof that Eagle denied making the statements. iii. The probability that the government would offer countervailing evidence, thus extending an already lengthy trial. iv. The danger of unfair prejudice to the government. The proffered evidence would clearly have tended to divert the jury’s attention from the issue before it—Peltier’s guilt or innocence, While the more prudent course might have been to allow the defense to present the evidence, we find no abuse of discretion in the trial court’s exclusion of the testimony of ** The two witnesses testified outside the presence of the jury that after their testimony at trial, they had been threatened by Peltier himself that if they did not return to court and testify that their earlier testimony had been induced by F.B.I. threats, their lives would be in danger. 35a Jimmy Eagle and Myrtle Poor Bear, in light of its low probative value, the potential for further delay in the trial, and the danger of unfair prejudice to the government. We now summarize briefly the remaining evidence ex- cluded by the trial court which the defendant contends further supported his defense that he was the victim of an F.B.I. frame-up. We have concluded that the evidence was properly excluded and would not have bolstered the de- fense theory. Telescopic Sight Demonstration. Coward and Stoldt testified that when they sighted Peltier and Eagle on the day of the murders, they were approximately one-half mile from them. The defendant requested that the members of the jury be permitted to look through Coward’s telescopic sight to satisfy themselves that an identification could not be made from such a distance. The question of whether to permit jury experiments rests within the discretion of the trial court. Friedman v. United States, 347 F.2d 697, 709 (8th Cir.), cert. denied, 382 U.S. 946 (1965), We hold that the trial court’s refusal to allow the jury members to look through the telescopic sight was not an abuse of discretion here. The trial court did permit the defendant to introduce the testimony of a firearms expert, who attempted to iden- tify a familiar individual through the same telescopic sight at a distance of one-half mile and was unable to do so. The expert did not testify that such an identification was im- possible. Furthermore, on cross-examination, the expert testified that a number of factors could influence a person’s ability to make such a sighting, including atmospheric con- ditions, the eyesight of the observer, the lay of the land, and prior training with a scope. Since these variables would affect each juror’s experience with sighting through Coward’s sight, we agree with the district court that such an experiment would have little, if any, probative value. F.B.I. Lab Reports. While the district court admitted into evidence the lab reports regarding the association or 36a lack of association between the .223 casing and the Wichita AR-15, the court refused to allow defense counsel to men- tion the dates of the reports in his argument to the jury, citing FED. R. EVID. 613(b). Defense counsel stated his firm agreement with the court’s ruling. The court’s reason for restricting counsel was that when the author of the reports, Evan Hodge, was on the stand, counsel for the de- fense declined to question him as to the reason for the apparent inconsistency, after the trial court suggested that he do so, We hold that the district court did not abuse its discretion in so limiting defense counsel’s argument. On redirect, in response to a question from government coun- sel, Hodge stated that he first began to examine Ex. 34-B, the .223 cartridge casing, in December of 1975 or January of 1976. On recross, defense counsel] did not question Hodge on the timing of his association of the Wichita AR- 15 with the .223 casing, preferring to let the lab reports speak for themselves. The lab reports were before the jury, which could draw what inferences it chose. Waring 302. Special Agent Waring’s 302 was an eight- page report which apparently had been typed on two type- writers. The dates of dictation (June 26) and transcription (June 30) were transposed. The defendant contended that the report had been doctored at a later time to conform with the emerging theory of the case. The district court refused to admit the report, but allowed extensive testimony concerning the alleged difference in type. Special Agent Waring testified that he had dictated one of his 302’s to two different secretaries, who may have typed the 302 on two different typewriters. Defense coun- sel, on cross-examination, questioned Waring about the fact that the 302 was typed on two different typewriters and suggested that Waring had had the 302 retyped so as to conform to an agreed upon version of the facts. Waring denied the allegation. Defense counsel then sought to intro- duce the 302 into evidence to allow the jury to witness the 37a different types on the report. The defense later called a witness who testified that the 302 in question did indeed contain two different types. Even were we to hold that the trial court erred in excluding the report, we fail to see how the defendant was prejudiced by the trial court’s ruling, in view of the fact that the question of the different types was examined in such detail in the testimony. Ill RerusaAu To Reap TEsTIMONY TO JURY During its deliberation the jury made two requests that certain trial testimony be read: a portion of Michael An- derson’s testimony, and the two statements made by Peltier after his comment at his arrest that, if he had known the persons approaching him were law enforcement officers, “he would blow [them] out of [their] shoes.’’ The trial court refused the requests, instructing the jury instead to rely upon its recollection of the witnesses’ testimony during trial. The decision to read testimony as requested by the jury rests within the sound discretion of the trial judge. United States v. Ballard, 535 F.2d 400, 407 (8th Cir.), cert. denied, 429 U.S. 918 (1976); United States v. Mesteth, 528 F.2d 333, 334 (8th Cir. 1976). We have examined the requested testimony and are satisfied that the trial court did not abuse its discretion.”* The testimony was not crucial to the 16 Peltier also contends that the trial court failed to exercise any discretion at all, declaring ‘‘its rigid policy of traditionally denying jury requests for testimony.’’ We have reviewed the trans- cript and are not persuaded that the trial court’s comments may properly be construed as stating such a policy. We note, however, the holding of the United States Court of Appeals for the Seventh Circuit, that: [W]e believe a judge could properly adopt and follow a routine practice of declining such requests unless supported by some extraordinary showing of need. United States v. McCoy, 517 F.2d 41, 45 (7th Cir.), cert. denied, 423 U.S. 895 (1975). 38a verdict, as the defendant contends, citing United States v. Rabb, 453 F.2d 1012, 1013-14 (3d Cir. 1971). Furthermore, the failure to read the testimony did not create unfairness to him, as he contends, citing United States v. Jackson, 257 F.2d 41 (3d Cir. 1958), since the requested testimony was favorable to the government’s case. IV EXTRADITION Peltier contends, for the first time on appeal, that the trial court had no jurisdiction to try him, because he was extradited from Canada in violation of the Webster- Ashburton Treaty, 8 Stat. 572. Article X of the Webster-Ashburton Treaty provides in pertinent part that: It is agreed that the United States and Her Britannic Majesty shall * * * deliver up to justice all persons who, being charged with the crime of murder * * ® shall seek an asylum, or shall be found, within the terri- tories of the other: provided that this shall only be done upon such evidence of crimmality as, according to the laws of the place where the fugitwe or person so charged shall be found, would justify his apprehen- sion and commitment for trial * * *. (Emphasis added.) 8 Stat. 576. Peltier contends that the evidence of criminality presented to the Canadian tribunal “consisted of the false affidavits of Myrtle Poor Bear, obtained by the government through coercion and deceit and known by the government to be false.” He contends that the presentation of false evidence violated the terms of the treaty, thereby depriving the trial court of jurisdiction. He cites a long line of cases beginning with United States v. Rauscher, 119 US. 407 (1886), which stand for the proposition that the demanding state may not charge and try the extradited defendant for a crime other than one enumerated in the applicable ex- 39a tradition treaty, and for which he was specifically oxtra- dited. ; The governinent argues that the jurisdiction of the trial court over the defendant is not affected by the manner in which his presence before the court was obtained, citing Frisbie v. Collins, 342 U.S. 519 (1952) and Ker v, IIlinois 119 U.S. 436, 444 (1886). However, we do not find it idee sary to decide what standard should be applied to the review of claims of government misconduct in international proceedings,” since, under any standard, Peltier's claim Is, on its face, lacking in substance Peltier does not claim that he was extradicted solely on the basis of Myrtle Poor Bear’s affidavits * or that the other evidence presented to the Canadian tribunal was insufficient to warrant extradi- tion. It is clear from a review of the trial transcript that other substantial evidence of Peltier’s involvement in the murders was presented in the extradition proceedings, but the record of those proceedings was not made available either to the trial court or to this court. _~—— 'T'We note that the United States Court of A note ppeals for the Second Circuit has recently declined to give such broad effect to Frisbie and Ker, holding in United States v. Toscani 267, 275 (2d Cir. 1974) that: 8 v. Toscanino, 500 F.2d (W]e view due process as now requiring a court to divest itself of jurisdiction over the person of a defendant where it has been acquired as the result of the government’s de- liberate, unnecessary and unreasonable invasion of the accused’s constitutional rights. ** The use of the affidavits of Myrtle Poor Bear in the extraditi proceedings was, to say the least, a clear abuse of the Sas process by the F.B.I. This was conceded by government counsel on the hearing in this court. It does not, however, follow that the testimony of this obviously confused and ‘‘unbelievable’’ witness should have been permitted under either theory advanced by Peltier as hereinbefore set forth. See discussi of this opinion. sighs eile 40a V COLLATERAL ESTOPPEL Peltier alleges that his prosecution was barred by the doctrine of collateral estoppel, since codefendants Robideau and Butler were found not guilty by a jury on the basis of evidence much of which was the same evidence adduced against Peltier. Peltier was not a party to that proceeding, and may not invoke the doctrine of collateral estoppel. United States v. Brown, 547 F.2d 438, 444 (8th Cir.), cert. denied, 430 U.S. 937 (1977). Cf. Turley v. Wyrick, 554 F.2d 840, 842 (8th Cir. 1977), cert. denied, 434 U.S. 1033 (1978). The judgment of conviction is affirmed. A true copy. Attest:, CuerK, U.S. Court or Appeats, Ericuts Crrcvir. 4la APPENDIX B — AFFIDAVIT ONE UNITED STATES OF AMERICA STATE OF SOUTH DAKOTA COUNTY OF PENNINGTON Ly THe Matter or THe Exrrapition Act. R.S.C. 1970 Cuap. )-21 AND IN THE Matrer oF LEONARD PeLTIER, ALSO KNOWN AS Leonarp LitrLe SHELL, LeonarD WILLIAMS, JoHn Yettow Rose, Erwin YeELLOw Rose, Leonarp JoHN PELTIER Affidavit Myrtle Poor Bear, being first duly sworn, deposes and states: 1. 1 am an American Indian born February 20, 1952, and reside at Allen, South Dakota, one of the United States of America. 2. I first met Leonard Peltier in Bismarck, North Dakota, during 1971. During March, 1975, I again met Leonard Peltier at St. Francis, South Dakota, United States of America. During April, 1975, I went to North Dakota to see him as a gir! friend of his. About the last week of May during 1975 I and Leonard Peltier went to the Jumping Bull Hall near Oglala, South Dakota, United States of America. There were several houses and about four or five tents. When Leonard Peltier arrived, he gave orders on what was to be done. I was his girl friend at this time. About a week after we arrived, about the second week of June, 1975, Leonard Peltier and several others began planning how to kill either Bureau of Indian Affairs Department, United States Government police or Federal Bureau of Investigation, United States Government, agents who might come into the area. Leonard Peltier was mostly in charge of the planning. All persons involved in the 42a planning had special assignments. There was also a de- tailed escape route planned over the hills near the Jumping Bull Hall area. I was present during this planning. Leonard Peltier always had a rifle and usually had a pistol near him. The pistol was usually under a car seat. About one day before the Special Agents of the Federal Bureau of Investigation were killed, Leonard Peltier said he knew the Federal Bureau of Investigation or the Bureau of Indian Affairs were coming to serve an arrest warrant on Jimmy Eagle. Leonard Peltier told people to get ready to kill them and he told me to get my car filled with gas to be ready for an escape. I left Jumping Bull Hall at this point and did not return. During August, 1975, I met Leonard Peltier again at Crow Dog’s Paradise on the Rosebud Indian Reservation, South Dakota, United States of America. We talked about the killing of the two Federal Bureau of Investigation agents near Jumping Bull Hall. Leonard said it makes him sick when he thinks about it. He said that one of the agents surrendered, but he kept shooting. He said it was like a movie he was watching but it was real, he was acting right in it. He said he lost his mind and just started shooting. He said he shot them and just kept pulling the trigger and couldn’t stop. Subscribed and sworn to before me this 19th day of February, 1976. /3/ Deputy Clerk United States District Court District of South Dakota /3/ Myrtle Poor Bear 1, Andrew W. Bogue, United States District Judge for the District of South Dakota, do hereby certify that at- 43a tached hereto is the Affidavit of Myrtle Poor Bear, sworn to before Betty B. Berry, Deputy Clerk of the United States District Court for the District of South Dakota, whose signature appears on said Affidavit, and that the said Betty B. Berry, was authorized to administer oaths for general purposes and that the said Affidavit is in due form of law, In testimony whereof I have hereunto signed my name and caused the seal of the said Court to be affixed at the City of Rapid City in the state of South Dakota, this day of February, 1976. Anprew W. Boavur United States District Judge APPENDIX B — AFFIDAVIT TWO UNITED STATES OF AMERICA STATE OF SOUTH DAKOTA COUNTY OF PENNINGTON Ly THe Matter or THe Exrrapition Act. R.S.C. 1970 Cuap. K-21 anp In THE Matter or Leonarp Pewttier, ALso KNOWN AS Leonarp Lirtte Saev., Leonarp WiLuiaMs, JoHN Yettow Rose, Erwin Yettow Rose, Leonarp Joun PeLtTier Affidavit Myrtle Poor Bear, being first duly sworn, deposes and states: 1. | am an American [ndian born February 20, 1952, and reside at Allen, South Dakota, one of the United States of America. led ii rm SS 44a 9 | first met Leonard Peltier in Bismarck, North Dakota, during 1971. During March, 1975, I again met Leonard Peltier at St. Francis, South Dakota, United States of America. During April, 1975, I went to North Dakota to see him as a girl friend of his. About the last week of May during 1975 I and Leonard Peltier went to the Jumping Bull Hall near Oglala, South Dakota, United States of America. There were several houses and about four or five tents. When Leonard Peltier arrived, he gave orders on what was to be done. 1 was his girl friend at this time. About a week after we arrived, about the second week of June, 1975, Leonard Peltier and several others began planning how to kill either Bureau of Indian Affairs Department, United States Government police or Federal Bureau of Investigation, United States Government, agents who might come into the area. Leonard Peltier was mostly in charge of the planning. All persons involved in the planning had special assignments. There was also a de- tailed escape route planned over the hills near the Jumping Bull H [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_IA40385005_2148%3A1. Public record. Not legal advice.