PELTIER: SHARP DISINFORMATION…#3

Appeals: Errors of Law

 

Dear Supporters:

 

Peltier’s pro bono attorney and former federal judge, Kevin H. Sharp, is suffering under the weight of his own inconsistent and purposefully agenda-driven rants. 

 

Sharp’s fallback position in many public ramblings is quoting appellate statements from Assistant U.S. Attorney, Lynn Crooks before the Eighth Circuit Court of Appeals. However, therein lies the fallacy of deliberately ignoring a fundamental and obvious cornerstone of the criminal justice system. 

 

There is a crucial factor that Sharp desperately wants uninformed Peltier supporters, and his client—the convicted brutal double-murderer Peltier—to overlook; not only to dismiss, but to completely disregard. Sharp plays the look-over-here game, ignoring a fundamental fact that he cannot deny, avoid or refute.

 

Sharp’s quoting of AUSA Crooks was accurate, but irrelevant. 

 

Sharp would have to agree that post-conviction, Peltier’s many attorneys appealed what they believed were either constitutional violations or trial errors that could result in either overturning his conviction or remanding for retrial. None of their efforts were successful, but for one issue, the Freedom of Information release of the October 2, 1975 FBI Laboratory Teletype. That subject went through the courts five (5) times before it was ultimately dismissed by the Eighth Circuit. One of many other attempts was the appellate court dismissing an appeal that was “fatally flawed.” That appeal was the result of an “unartfully phrased” appellate statement made by AUSA Crooks, which is not unlike the distraction Sharp continues to promote today. 

 

But Sharp, as he has done, would only dismiss these court decisions, and specifically the judges who made them, with his slanderous public claim that implied the decisions were corrupt.[i]

 

Throughout the lengthy appellate history, and even to an issue unrelated to Peltier’s conviction, and in a different Court of Appeals; as late as November 4, 2003, the Tenth Circuit came to the same obvious conclusion: “Previous federal court decisions provided the (Parole) Commission with ample facts to support its conviction that Mr. Peltier personally shot Agents Coler and Williams.” And, “As the Eighth Circuit recognized, ‘the government tried the case on alternative theories: it asserted that Peltier personally killed the agents at point blank range, but that if he had not done so, then he was equally guilty of their murder as an aider and abettor.’” 

 

Anything post-conviction is legally academic relative to the more than twenty-two appeals that followed. Those appeals were designed to find something, anything, that would sustain the pursuit to find some relief for their client. 

 

However, there was an endpoint, that for obvious reasons escapes Sharp. Beyond April 18, 1977, after watching and hearing all the evidence, the jury came to their own inescapable conclusion; Peltier was guilty of murdering Agents’ Coler and Williams. That fact is undisputed.

 

What Sharp is attempting to do is alter the conviction by fantasizing that anything AUSA Crooks may have said during the appeals has any relevance or meaningful effect on the jury’s decision.

 

The appeals, regardless of what AUSA Crooks said, does not alter the outcome. As Sharp should understand, the appeals are designed in an effort to find errors of law, not facts. 

 

That obvious and fundamental principle escapes Sharp, albeit, deliberately, as he attempts to go back in time and alter the facts.

 

Sharp’s disinformation is a dishonest attempt to confuse Peltier supporters, and engender undeserved sympathy, by wrongfully inferring that anything stated post-conviction would change the guilty verdict or the conviction.

 

More to follow.  

 

“In the Spirit of Coler and Williams”

Ed Woods

---

[i] Kevin H. Sharp, 2/15/2023, “There were evidentiary rulings that appear to be, from someone who made a lot of evidentiary rulings from the federal bench (referring to his own six years as a federal judge), slanted so that the prosecutor got the upper edge.” Sharp does not qualify this public statement. He is stating that the judges’ decisions were deliberately made to favor the government over Peltier’s interests. There is no other way to interpret or lessen his traduced plain language; “slanted so that the prosecutors got the upper edge.” For further background see NPPA Blogs, available from the homepage, www.noparolepeltier.com : 1/31/22, 2/21/22, 4/2/22, 8/14/22, 10/7/22, 11/26/22, 3/11/23, 3/22/23, 3/24/23.

PELTIER: SHARP'S DISINFORMATION...#2

SHARP’S DISINFORMATION…#2

 

Constitutional Violation

 

Dear supporters:

 

The answer for Mr. Sharp is: No, I do not agree. 

 

Sharp is only grasping at straws and agitating Peltier supporters with agenda-driven, tired and shallow claims. He is trying to blow life into arguments that have long since died of natural causes.

 

Continuing with the February 15, 2023 Native America Calling podcast (see previous Blog dated 3/11/23  http://wwwnoparolepeltiercom-justice.blogspot.com) 

when Peltier attorney Kevin Sharp made the following public statement in response to a comment by Ed Woods regarding Constitutional violations:

 

KEVIN SHARP: “There was a sixth Amendment violation to a fair and impartial jury, when one of the jurors admitted she was prejudiced against Indians. Those were her words. And she admitted it. Now that is a violation of the Sixth Amendment right to a fair and impartial jury. So, I think Mr. Woods will have to agree with me that if we start there, let’s have a new trial, and today that would get you a new trial. Problem was that Leonard’s attorneys didn’t appeal that. And, at that time you could waive the issue, you can’t waive that issue today. It’s just ineffective assistance of counsel and that issue alone gets you a new trial.”

 

Kevin Sharp offers a premise that would not survive a court challenge.

 

Brief background: (Note: The trial transcript of this juror issue is available here.[i] Readers are strongly encouraged to review the entire document.) 

 

On the first day of Peltier’s trial in Fargo, North Dakota, during a break in the proceedings, Chief U.S. District Court Judge Benson, on the record, advised the federal prosecutors and Peltier’s two defense attorneys (Peltier was physically present during all these proceedings) that his office had been contacted by an individual who claimed that one of the jurors, Shirley Klocke, made a statement disparaging Native Americans. Judge Benson had his clerk secure an affidavit from the complainant and provided it to the attorneys and Peltier. At the close of that day’s testimony there was a lengthy discussion. The person who submitted the affidavit, along with two other witnesses who overheard the juror’s comment during a coffee break where they all worked, appeared voluntarily in the Judge’s chambers. Individually, there was a voir dire (questioning) of the three women by Judge Benson, Peltier’s attorneys (Taikeff and Lowe) and the prosecutors (U.S. Attorney Hultman and Assistant U.S. Attorney Crooks). They also voir dired the juror, Mrs. Klocke. There was further discussion between the lawyers and Judge Benson, each offering their opinion as to whether Mrs. Klocke should remain on the jury. That discussion ended with Judge Benson directing both sides to take the evening to consider the matter. 

 

            It is more than apparent that Peltier attorneys, Taikeff and Lowe, discussed the issue with Peltier, and as well, his three other attorney investigators, and there was obviously further discussion with the prosecutors. The following morning the result was that the government joined the defense motion to allow the juror to remain. Judge Benson accepted the motion for the record and the trial continued with Mrs. Klocke remaining on the jury. 

 

A flawed allegation:

 

What follows are the reasons why Kevin Sharp’s allegation of a wrongful conviction, based on the Sixth Amendment lacks merit, beginning with an appropriate observation; “The allegation of Peltier’s counsel on appeal amounts to no more than hindsight and second-guessing by one lawyer concerning trial tactics used by another lawyer. Peltier was equally well-represented at trial and on appeal.” 8^th Circuit, 9/14/78.  Sharp is just another second-guesser.

 

Peltier’s appellate attorneys reviewed the trial record and came to an apparent conclusion that neither the Sixth Amendment nor ineffective assistance of counsel were appealable issues or even rising to harmless error by the court. Considering how thoroughly this juror issue was resolved, they surely recognized these two issues.  

 

The chambers’ record is crystal clear that the prosecutors and defense lawyers, with Leonard Peltier present the entire time, witnessed the voir dire of the three witnesses and Mrs. Klocke. They were each privy to, and involved in, the questioning of these four women and especially Mrs. Klocke’s demeanor, responsiveness, candor, and body language. In other words, did she appear to be honest with her replies? 

 

They were all there, witnessing it for themselves. Kevin Sharp was not.

 

It is important to note here that it was the government and the court that had reservations about keeping this juror, out of concern that it could have a chilling and adverse effect regarding her attitude toward the government’s case:

 

AUSA Crooks stated, “I think it was pointed out with Mr. Hultman, this experience of coming in here may have adverse consequences to the United States and we are not really prepared to say whether or not we might not at this point want to challenge this juror.”

 

Judge Benson offered, “I have some concerns in my own mind about this juror.”

Peltier’s attorney Lowe summarized the situation and Constitutional considerations:

 

“…. And we feel he has a constitutional right not to have that juror removed without his motion in a situation that could lead to a constitutional detriment. We’re not just waiving the fact, we’re objecting to people with prejudice during the voir dire and now we say we want to keep the juror. There are different factors that play.”

 

The following morning in court:

 

U.S. Attorney Hultman, “There is one other matter…that the Government would like to put on the record at this time is the fact that we join in the motion that the defendant made late yesterday afternoon.” (Emphasis added.)

 

Judge Benson acknowledged, “The Court will then proceed pursuant to the agreement of counsel on that matter.”

 

As did Peltier attorney Taikeff, “Yes, Your Honor.”

 

What Sharp needs to recognize is the result of trial strategy. Peltier, his two attorneys, and undoubtedly discussions with Peltier’s other three attorneys, carefully considered Mrs. Klocke’s responses. They must also have considered that both the government and the court had their own doubts. Peltier and his five attorneys surely smelled blood in the water, and for the very reasons of government concern, felt that Mrs. Klocke may just as likely react to her experience in the Judge’s chambers, as detrimental to the government, but beneficial for the defense. They made a tactical and strategic decision after certainly serious consideration with their client.

 

As for Peltier’s Direct Appeal, the record noticeably reflects the obvious:

 

“We have carefully examined the record in the trial court and on appeal, and have concluded that the defendant’s trial counsel were aggressive, capable, and informed, and engaged in sophisticated trial decisions on strategy.” 8^th Circuit, 9/14/78.

 

Of course, these are the same Peltier-related judges that Sharp publicly slandered by inferring that their actions were corrupt. In Sharp’s mind their studied conclusions do not measure up to his imagined standards.[ii]

 

Sharp’s word-salad conclusion: “Problem was that Leonard’s attorneys didn’t appeal that. And, at that time you could waive the issue, you can’t waive that issue today. It’s just ineffective assistance of counsel and that issue alone gets you a new trial.” 

 

This leads to an obvious challenge; if Sharp really believes this, then he should move forward and file something, anything; step up and put his name on it. He needs to stop the pandering and act on his derisive instincts. But that hasn’t happened, and never will. Sharp has to be creative because the facts are elsewhere.

 

Sharp makes claims of constitutional violations but has quoted no legal references or citations, only a broad-brush stroke with a Sixth Amendment broom, searching in a desperate struggle to find any basis, no matter how irrational or misleading, to engender support for his double-murder client. 

 

More to follow. 

 

“In the Spirit of Coler and Williams”  

Ed Woods

---

[i] The entire relevant trial transcript is available at http://wwwnoparolepeltiercom-justice.blogspot.com  and also at the following: Volume II, Morning Session, Thursday, March 17, 1977, https://www.whoisleonardpeltier.info/LEGAL/VOL02.htm, Sections {118} to beyond {299}, and Volume III, Morning Session, Friday March 18, 1977, https://www.whoisleonardpeltier.info/LEGAL/VOL03.htm, between Sections {303} and {304}.

 

[ii] Kevin H. Sharp, 2/15/2023: “There were evidentiary rulings that appear to be, from someone who made a lot of evidentiary rulings from the federal bench (referring to his own six years as a federal judge), slanted so that the prosecutor got the upper edge.” Sharp does not qualify this public statement. He is stating that the judges’ decisions were deliberately made to favor the government over Peltier’s interests. There is no other way to interpret or lessen his traduced plain language; “slanted so that the prosecutors got the upper edge.”

 

FARGO: TRIAL TRANSCRIPT REGARDING PELTIER ‘JUROR’ Shirley Klocke

 

Note:

-Peltier attorneys; Elliot A Taikeff (deceased), John Lowe (deceased). US Attorney Evan Hultman (deceased), AUSAs Lynn Crooks, Robert Sikma (deceased), Chief USDCJ Paul Benson (deceased)

-Highlighted statements for reference purposes.

{118}

(Whereupon, at 10:50 o'clock A.M. the following proceedings were had in judge's chambers:)

THE COURT: The reason I asked Counsel to come in is because the Clerk of Court received a call this morning from a Patricia O'Day relating to one of the jurors and I instructed the Clerk to have her present it in affidavit form which has been done. I will pass it around to Counsel.

MR. HULTMAN: Just read it, Elliot.

MR. TAIKEFF: May I do that, Your Honor?

THE COURT: Surely

MR. TAIKEFF: It's dated 3/17/77. "I hereby swear that on the 10th day of March, 1977 I in the presence of two witnesses at a coffee break heard Shirley Klocke say these words during our conversation about her eminent jury selection process in the Peltier case: She said, quote "`I am so prejudiced against Indians.'" unquote. She also made this statement back in the office in more general terms.

I swear this statement to be true as I was prompted by no one to make this statement and make it as a matter of principle to my own conscience." Signed Patricia O'Day, witness to the conversation. And it is sworn to before a notary public of this state.

THE COURT: She names two persons who apparently were witnesses to the conversation.

MR. TAIKEFF: I'm sorry. I did not read that correctly.

{119} It doesn't say to the conversation it says, "witnesses to the conversation," and then two people have signed their names. They appear to be Margaret Loss, L-o-s-s and Carol Schatzke, S-c-h-a-t-z, or S-c-h-a-t-z-k-e.

May I return it to Your Honor?

THE COURT: Unless you wish to.

MR. HULTMAN: Could I look. Fine. Thank you.

Your Honor, could I at least make a query or a response of some kind introductory?

THE COURT: That's the reason I asked Counsel to come.

MR. HULTMAN: First of all, Your Honor, of course, I know nothing about what we're looking at and I would like to inquire, and again with no, certainly no reflection on Counsel, and Counsel understands this, but --

MR. TAIKEFF: The answer to the question is no, we know nothing about it.

MR. HULTMAN: Your Honor, see, the problem is we went through exactly the same thing when you have a juror forced out, as I understand just from the discussions that have gone on, and things that have been said and done up to this time. I have no knowledge of it other than what I've learned in the courtroom and discussion with Counsel.

When you have two groups, as Counsel has indicated, and, one, I'm not sure who makes up one and certainly the second one is so large that maybe it's 500 or 1,000 people that have {120} an interest in this case of some kind that are all over the courthouse, they are all over the community, I run into them every place I go, which have to do, as I say, and it's no reflection or any way directed in terms of counsel or control. I clearly understand that and Elliot Taikeff and I understand that he has no control over that. But it seems to me, Your Honor, that if an inquiry of this kind is to be made, there are two precautionary matters and one is, and that's the reason for my motion I filed a little bit ago with reference to the sequestration as far as witnesses from this point and looking to people that are in the courtroom, that I in no way am implying that searching matters of this kind and interposing is going on. But because of the numbers of people that are involved and their interest in it, in the case out here, it seems to me that the Court has to be doubly cautionary in the terms of, one, finding out the source and how matters of this kind are generated, and I'm not suggesting, because I have no knowledge, that is the case here and I don't want the inference of that kind. I know Counsel understands that that's the motive in which I state what I state now.

I think unless a careful approach is made from that kind, and maybe even some precaution from the Court's standpoint alone, and that's the very reason why again the government requested the sequestering of this jury, because of the opportunity of people to interject themselves and create a problem of the {121} kind here where there is a response of some kind which then leads to a hearing and leads to discussions and so forth. So all I'm saying is, Your Honor, one, I have no knowledge of any kind as to what this event is, but, two, I wanted to state to the Court the genesis of a general problem because it was the same kind of problem that, John, if you remember, we had a discussion --

MR. LOWE: That's a complete misstatement of what happened last summer. We never had that last summer.

THE COURT: I'm, excuse me. I'm not going to get into what may or may not have happened last time.

Let me make a comment at this point. The only thing I'm concerned about is whether or not this juror did actually make that statement at the time. That's the reason I asked for a sworn affidavit from this person as to whether or not this juror did in fact make such a statement and unless Counsel have some different ideas, I propose that she be brought in sometime today in chambers and shown this statement and asked to comment on it.

MR. TAIKEFF: I have an idea in conflict with that, Your Honor.

THE COURT: All right.

MR. TAIKEFF: I think we should not confront the juror now that she's a sitting juror because it may have some affect upon her as a juror.

{122}

I would propose that instead we bring in the three people whose names appear there. That would accomplish two purposes: first, it would avoid the necessity of, or possibly avoid the necessity of any confrontation with the juror unless it becomes absolutely necessary. Secondly, it would allow defense counsel to discover for the first time the identity of this person and exactly who she is and what relationship, if any, she has to the defendant supporters, if I may use a term of no great precision, and perhaps satisfy Mr. Hultman that the defendant or the defense team did not come here with legions who have infiltrated this state. There is an implication of a sinister conspiracy --

MR. HULTMAN: I didn't mean that.

MR. TAIKEFF: Not that Counsel has any connection with it or responsibility for --

THE COURT: I think I understood what Mr. Hultman said and I understand what you're saying.

What is your response to the suggestion made by Mr. Taikeff? 

MR. HULTMAN: I have no objection, Your Honor. I think the Court --

THE COURT: Well, I'm not going to bring anybody in without the lawyers being present.

MR. HULTMAN: I understand.

MR. TAIKEFF: I understand.

{123}

THE COURT: So I do think --

MR. HULTMAN: I have no objection, Your Honor, to that.

THE COURT: Mr. Taikeff's solution is probably a better solution than mine.

If there are three persons that will, if the other two people substantiate or corroborate what has been said here, then I think my duty is to make a decision as to what should be done as far as this juror is concerned.

MR. HULTMAN: Your Honor, could I ask a question? I would take it from the procedure that's been suggested that it would be the Court that would first make the inquiry of these particular witnesses in the presence of all of us.

THE COURT: Yes.

MR. TAIKEFF: I would hope so.

THE COURT: That is my intention. I would make the inquiry.

MR. HULTMAN: Yes.

THE COURT: I want it to be done on the record and the lawyers be present.

MR HULTMAN: Government would have no objection and join in it.

MR. TAIKEFF: I would like to voluntarily bind myself not to contact those people or to have any of my investigators or other legal workers contact them. I'd like these people to come into the courthouse without any interference or inquiry {124} made of them until such time as they appear before the Court.

MR. LOWE: Are you willing to make a similar offer?

MR. HULTMAN: No question.

THE CLERK: I wonder, Your Honor, would you like to go to the extreme of having Summons issued for these three persons and served upon them by the marshals to appear before you at a certain time?

THE COURT: I don't think I have any authority to issue Summons.

MR. TAIKEFF: Your Honor, a Subpoena could be issued. I would think if these people were asked to come they undoubtedly would come. They apparently did this as a voluntary act.

THE COURT: As long as you're here, I have been thinking about the request made by Mr. Lowe yesterday.

We'll follow that procedure and I'll leave it up to you to see if you can arrange for them to come in at some time. And I assume then that Counsel are agreeable that this juror will remain on the jury until I get these people in? We'll try to get them in today.

MR. TAIKEFF: Yes, Your Honor.

THE CLERK: Any particular time of the day, Judge?

THE COURT: Find out when they can come in. We may have to accommodate the court proceedings accordingly.

MR. CROOKS: I would suggest that be done after court and after the jury has left. If these are fellow employees, {125} that in itself might create a problem. I would suggest it be done with as few spectators as possible.

MR. LOWE: It won't be a problem if they're brought to chambers. The jury will be in their jury room. It can't create problems possibly.

THE COURT: Ralph, would you find out when they can come. I would like to see all three of them.

Just one thing more. I have given some thought to the suggestion made by Mr. Lowe that the marshals be required to monitor the TV shows to exclude any police shows and I think the only authority, I have kind of concluded the only authority the Court has on sequestration is to prevent the jury from reading or hearing any report on the case and I don't really believe that I have got any authority to move into the area of normal TV programming that they might otherwise be entitled to watch.

MR. LOWE: Would you be willing to receive from authority from that, Judge, other than -- there's a district court decision that just recently did that. Would you be willing at least to tell the jury in your judgment it would be wiser for them not to do that because it might, you asked them as a matter of grave not to do it?

THE COURT: The other thing is the jurors do not have a TV, they do not have radios, they do not have the TV in their room.

{118}

(Whereupon, at 10:50 o'clock A.M. the following proceedings were had in judge's chambers:)

Pages 118-125 placed by Clerk in sealed envelope in file, upon order of the Court.

{125}

THE COURT: Ralph, would you find out when they can come. I would like to see all three of them.

XXXXXXXXXXXXXXXX

{270}

The Court is in recess until 9:00 o'clock tomorrow morning.

(Whereupon, the following proceedings were had in the Judge's chambers, the Defendant being present in person:)

THE COURT: There are three persons -- I think most of you are aware of why we're here. There are three persons who have alleged that one of the jurors in this case prior to {271} being selected as a juror made a statement in their presence that she was prejudice against Indians and so I've asked those three persons to be brought in and it is my intention to question them about it.

You may have them brought in.

MR. HULTMAN: Your Honor, could I make a request of the Court, Your Honor?

THE COURT: Yes. Just a moment.

MR. HULTMAN: Your Honor, as is normally the case and as I indicated, we had an experience of this kind before and I would make a request to the Court that the Court interview each of these three individuals, not singularly but not in the presence of each other because on a previous experience we found that the observations as happens in the courtroom, likewise when you set three people down in a group you get a group discussion but when you get three individuals individually you get what they heard without two others then having heard what one of them said.

MR. TAIKEFF: We have no objection, Your Honor.

MR. HULTMAN: So I would request of the Court that the Court deal with them individually.

THE COURT: Well, okay. Bring in, it looks like Margaret Foss.

MR. TAIKEFF: Would Your Honor among the questions being asked include the question what relationship if any this {272} person has to the courthouse or any of the participants.

MR. HULTMAN: And also we would make a request, Your Honor, that if it would be Your Honor's wish, that you pursue the chain. We think that it is very important.

THE COURT: Pursue what?

MR. HULTMAN: The chain of individuals, Your Honor, on how this came about that, the event itself plus who overheard and then how does it end up being brought to the Court's attention, whether or not there has been any communication of any kind that may have in any way contributed to this act.

MR. TAIKEFF: We concur, Your Honor.

MR. HULTMAN: It's a very unusual act. That's what I'm attempting to go beyond, whether it was an act that had no influence or not.

THE COURT: Have a chair. Are you Margaret Foss?

MARGARET FOSS: Yes, sir.

THE COURT: The people in the room here are lawyers and the defendant in this lawsuit and other persons connected with the case.

Patricia O'Day called the Clerk of this court this morning and gave the Clerk a message and I ask that she reduce it to a sworn statement and she did do that and I have the statement in my hands.

And what she has said is that one of the jurors, Shirley Klocke, in the presence of her and you and one other {273} made a statement with reference to her possible jury, her possible, the possibility of her being selected on this jury.

Do you recall that that happened?

MARGARET FOSS: Yes, sir.

THE COURT: And where did it happen?

MARGARET FOSS: In the cafeteria of Blue Cross-Blue Shield.

THE COURT: And when did it happen?

MARGARET FOSS: The day I'm not sure. It was in the afternoon, coffee break.

THE COURT: Who was present?

MARGARET FOSS: Patty O'Day, Shirley Klocke, Carol Schatzke and myself.

THE COURT: What was said by Miss Klocke?

MARGARET FOSS: At the time she said that she was very prejudice against Indians.

THE COURT: What caused her to say that? I mean, what led up to her saying that?

MARGARET FOSS: That I don't remember.

THE COURT: What were you talking about at the time?

MARGARET FOSS: It was just general things at the time.

THE COURT: Do you remember any other part of the conversation?

MARGARET FOSS: Just that and that she didn't, and {274} Patty O'Day started defending them, the minority and Shirley said that she didn't want to talk about it. "Let's just drop the subject."

THE COURT: Who opened the subject?

MARGARET FOSS: As far as I remember if was Shirley.

THE COURT: And you don't remember what you were talking about when it was opened?

MARGARET FOSS: No. Because at our coffee breaks we, everybody in general and --

THE COURT: How do you happen to remember that she made this comment that she was prejudice?

MARGARET FOSS: Because I was shocked at the time that she said it.

THE COURT: Did Carol Schatzke say anything?

MARGARET FOSS: Yes, sir. I believe she did.

THE COURT: What did she say?

MARGARET FOSS: That I don't remember either.

THE COURT: Did Patty O'day say anything?

MARGARET FOSS: Yes. She was the one that did the most talking.

THE COURT: And what did she say?

MARGARET FOSS: Well, to the effect that there are good and bad in all nationalities and why should be pick on this one particular person or --

THE COURT: You don't remember who initiated the {275} conversation or do you remember who initiated the conversation?

MARGARET FOSS: No, sir, I do not.

THE COURT: I got the impression that you did not.

Was there any other conversation among this group?

MARGARET FOSS: Not on this particular subject; no.

THE COURT: On this subject at this time or any other particular time?

MARGARET FOSS: No.

THE COURT: Not to your recollection?

MARGARET FOSS: No.

THE COURT: Do you work with Miss Klocke?

MARGARET FOSS: I work with them but I am not socially involved with them so whatever is said after work I do not know.

THE COURT: Mr. Hultman, do you have anything else you want to ask this lady?

MR. HULTMAN: Are you saying that this is the only part that you recall of the conversation concerning this matter or are you saying this is all that was said concerning this matter?

MARGARET FOSS: At coffee break this is about all that was said.

Like I say, I am not socially involved with these people. What is said after --

MR. HULTMAN: What do you mean by the response that "I am not socially involved with these people"?

{276}

MARGARET FOSS: Because of our age differences, these other people and myself, I do not chum around with them let's say.

I am workers with them.

MR. HULTMAN: Did you feel it was something at that time that was just a matter of conversation?

MARGARET FOSS: No. She was very strongly, she was very emphatic on her statement.

MR. HULTMAN: But you don't remember anything else about the conversation other than that one statement, is that right?

MARGARET FOSS: That's right.

MR. HULTMAN: Were you the one then, I'm asking a question, were you the one that brought the matter to the Court's attention?

MARGARET FOSS: No.

THE COURT: No. No. I wanted to question the two witnesses before I --

MR. HULTMAN: All right.

Who have you had conversation with since -- what time of day approximately did this take place?

MARGARET FOSS: About 3:00 o'clock in the afternoon.

MR. HULTMAN: And approximately when was this, what day was it?

MARGARET FOSS: Well, it was last week. Wednesday or {277} Thursday I assume.

I'm not sure on the date but it was in the afternoon.

MR. HULTMAN: Who else was present? It was in a coffee room you say?

MARGARET FOSS: Yes.

MR. HULTMAN: Who were all the people that were present?

MARGARET FOSS: You mean just at our particular table?

MR. HULTMAN: Yes. First, who was at your table?

MARGARET FOSS: The four that I named previously.

MR. HULTMAN: Were there other people in addition to the four of you that were at your table?

MARGARET FOSS: No. There was just the four of us.

MR. HULTMAN: So you were the only ones in the room, is that --

MARGARET FOSS: Yes. Well, not in the room.

We have a big cafeteria. There's several employees down at this time having their coffee break.

MR. HULTMAN: But you don't remember who initiated the conversation in any way or any discussion about it?

MARGARET FOSS: No. I'm sorry, sir. No.

MR. HULTMAN: Who have you talked to since that afternoon around 3:00 p.m. about --

MARGARET FOSS: Myself?

{278}

MR. HULTMAN: -- this statement? Yes.

MARGARET FOSS: No. Nobody.

MR. HULTMAN: You had no further conversation with anybody about it?

MARGARET FOSS: No .

MR.HULTMAN: This is a conversation that only took place last week, is that correct, and yet I'm just trying to probe, ma'am, but it seems to me that you would remember something beyond the one statement that was said, what may have led up to the discussion or something else about it.

MARGARET FOSS: The only thing that I can vaguely remember, if it is correct, is that she was going to be called for jury duty. That was about the only thing.

MR. HULTMAN: Do you recall whether anybody asked her any questions about the fact that she was being called as a juror?

MARGARET FOSS: No, sir.

MR. HULTMAN: I have no further questions, Your Honor. Thank you.

THE COURT: Mr. Lowe or Mr. Taikeff, do you have any?

MR. LOWE: No.

MR. TAIKEFF: I have --

MR. HULTMAN: Could I have just one -- go ahead.

MR. TAIKEFF: I have one question.

You said that you did not speak with anyone about this. {279} Did anyone attempt to speak with you or to otherwise contact you about this subject --

MARGARET FOSS: No, sir.

MR. TAIKEFF: -- since the time it occurred?

MARGARET FOSS: No.

MR. HULTMAN: Do you know, has there been anybody at your place of business to your knowledge at Blue Cross-Blue Shield asking questions about prospective jurors at all?

MARGARET FOSS: Not to my knowledge.

MR. HULTMAN: Did you respond in any way to the conversation?

MARGARET FOSS: No. I didn't because we were shocked when she said it and we just tried to kind of, I myself do not want to get involved in that because I have my own feelings.

MR. HULTMAN: Well, when you say you have your own feelings, what are your feelings?

THE COURT: I'm not, we're going too far.

MR. HULTMAN: All right. I just wanted to know, I wanted to know whether or not this conversation had in fact, did you in fact hear this conversation?

MARGARET FOSS: Yes. I did.

THE COURT: All right. Ralph, you may, Mrs. Foss, you may leave.

Bring in --

MR. LOWE: Do you want her to stand by, Your Honor?

{280}

THE COURT: Yes. Have her stand by and bring in Carol Schatzke.

You are Carol Schatzke?

CAROL SCHATZKE: Yes.

THE COURT: The people in this room are the defendant, the lawyers and some other people connected to this case which is now being tried.

The reason you were asked to come down here is that Patricia O'Day has made a statement concerning one of the witnesses, or one of the jurors in this case and that she states that at a coffee break apparently sometime in the latter part of last week she made a reference to Indians and apparently had something to do with her prospective service on the jury and apparently it was made in the presence of you and Margaret Foss. Do you remember such an incident?

CAROL SCHATZKE: Yes. I do.

THE COURT: Who was present?

CAROL SCHATZKE: It was Margaret and I and Patty and Shirley.

THE COURT: And what was the occasion; how did you happen to be together?

CAROL SCHATZKE: Oh, it was coffee time.

THE COURT: Who initiated the conversation related to jury or Indians or trial?

CAROL SCHATZKE: I can't really remember but I think {281} Shirley must have started it. Yeah. I think Shirley started it.

THE COURT: And what did she say?

CAROL SCHATZKE: I really can't remember exactly.

Other than the fact that she disliked Indians, she really didn't like them and she was prejudice against and Patty said, "Well, why," and she said, "Well, I just don't know but I am," and that was about it.

And then they ended the conversation. It wasn't much more to go on.

THE COURT: Have you heard any other conversation around -- you work for Blue Cross-Blue Shield?

CAROL SCHATZKE: Yes.

THE COURT: Have you heard any other conversation around there with reference to Miss Klocke being a juror in this case?

CAROL SCHATZKE: No.

THE COURT: Do you know of any people that came around to investigate her background or anything?

CAROL SCHATZKE: No.

THE COURT: Do you know anything other than what you've told me?

CAROL SCHATZKE: No.

THE COURT: Mr. Hultman.

MR. HULTMAN: Have you talked with anybody since that {282} afternoon about the event that the Court has just asked you some questions about?

CAROL SCHATZKE: Not until today when all this came about.

MR. HULTMAN: Who have you talked to today?

CAROL SCHATZKE: Well, Patty and Margaret and a couple of the girls at work. That's about it. It's all been in one area.

MR. HULTMAN: Did, what was the name of the lady, Your Honor, that was just here? I'm sorry.

THE COURT: Margaret Foss.

MR. HULTMAN: Did you talk to her today about it?

CAROL SCHATZKE: Yeah.

MR. HULTMAN: What did you talk to her today about it?

CAROL SCHATZKE: Oh, we've been talking about it all day at different times.

MR. HULTMAN: Did, do you remember how the conversation started with reference to this particular matter?

CAROL SCHATZKE: No. I really don't.

MR. HULTMAN: Do you remember what any of the other people said in the conversation at all?

CAROL SCHATZKE: No. I -- just that Shirley said she was prejudice and Patty said why and Shirley said she didn't really know, that she was and that was about it.

MR. HULTMAN: Now what was the last sentence that you {283} said? Would you repeat that? I'm sorry.

CAROL SCHATZKE: Oh, she said that she was and she didn't really know why she was prejudice but she just was.

MR. HULTMAN: She was but she really didn't know why, is that it?

CAROL SCHATZKE: Yeah.

MR. HULTMAN: Did she make any other explanation of any kind?

CAROL SCHATZKE: No.

At that time she said she didn't want to talk about it any more so then we just dropped it.

MR. HULTMAN: When, when did this conversation, what day did this take place, do you recall?

CAROL SCHATZKE: I think maybe it was Thursday of last week.

MR. HULTMAN: And what, what was the occasion?

CAROL SCHATZKE: We had coffee break at work.

MR. HULTMAN: What time of day then: would this have been in the morning or the afternoon?

CAROL SCHATZKE: I think it was morning coffee. I'm not too sure. I can't remember.

MR. HULTMAN: But there's no question that the four of you have discussed it today, is that right?

CAROL SCHATZKE: There's three of us that discussed it today.

{284}

MR. HULTMAN: Three of you discussed it. I'm sorry.

Who emanated that discussion? How did that start about?

CAROL SCHATZKE: Well, we found out that Shirley was on the jury and then Patty got upset and said she didn't see how she could be on the jury if she was prejudiced against Indians and she made a few phone calls and we got to talking about it and she was told to write a statement.

MR. HULTMAN: Whom did she call? In your conversations today who did she say she called?

CAROL SCHATZKE: Well, she said this morning that she had talked to the Clerk. She called here and I don't know who else, she must have talked to Judge.

THE COURT: No. She didn't. Excuse me.

It was reported to me that she called my chambers. My secretary referred her to the Clerk.

MR. HULTMAN: Beyond the Court or anything that happened as far as the courthouse, who else did she say she called or had conversations with about it?

CAROL SCHATZKE: She had, well, I don't know. She had the thing notarized.

I suppose she said, she talked to one of our supervisors and one of the notary publics and that's about it.

MR. HULTMAN: No further questions, Your Honor,

MR. TAIKEFF: I believe I have only one question, Your {285} Honor.

At the time of the coffee break when the conversation took place, either at the beginning or at the end of that conversation, or that coffee break, did you know that Miss Klocke was a prospective juror in the case?

CAROL SCHATZKE: No.

MR. TAIKEFF: I have no further questions.

THE COURT: Thank you.

And would you ask Patricia O'Day to come in.

MR. TAIKEFF: While that's happening, Your Honor, may I ask Your Honor to take judicial notice of the fact that in today's Forum there is a front page article on the trial and at the end of the article is a list of the names and addresses of all the jurors, the last being on page 2 of the Forum.

THE COURT: When I see the paper I'll take judicial notice of it. Thank you.

MR. TAIKEFF: All right. I was speculating on the chance that Your Honor had already read the paper.

THE COURT: All right.

You are Patricia O'Day?

PATRICIA O'DAY: Yes.

THE COURT: The people in this room are the defendant and lawyers and others who are connected with the trial that's going on here.

{286}

Is that your statement?

PATRICIA O'DAY: Yes. It is.

THE COURT: Would you just tell us what led up to this conversation that you had with Miss Klocke

PATRICIA O'DAY: We were just discussing the trial and stuff. She was on, going to be selected, or not selected for the jury but she was in the jury process and we just talked about the trial and we talked about Indian people in general and she had made the statement that, "I am so prejudiced against Indians," and I felt that she meant it, you know. Now whether, I don't mean that maliciously or anything. Okay.

But she just said, "I'm so prejudiced against Indians," and I said, "Well, do you understand the background for do you understand what's going on or", I just kind of felt around as far as compassion or whatever, what I felt. Okay.

And she just said she didn't want to talk about it any more.

So then we just left it at that. We were starting to fight.

THE COURT: When did this happen?

PATRICIA O'DAY: Last Thursday at coffee in the afternoon.

THE COURT: To your knowledge has there been anyone checking on her background or anything about it --

PATRICIA O'DAY: No.

{287}

THE COURT: -- with reference to her prospective jury service?

PATRICIA O'Day: No.

THE COURT: Did you have any further conversation with her?

PATRICIA O'DAY: No.

THE COURT: What do you mean in that statement when you stated that later discussion about general terms?

PATRICIA O'DAY: Oh, when we got back from coffee we were up in the offices and all, there was maybe five or six girls and we were all talking at one time about it, you know.

THE COURT: Was she in the group?

PATRICIA O'DAY: Yeah.

THE COURT: What was said there?

PATRICIA O'DAY: I don't remember exactly because I really wasn't listening.

There are other girls that had heard some of the conversation. They made that known to me today, that they had heard some of the conversation, you know, that she was saying. It was obvious to everyone that her feelings towards Indian people wasn't in the best judgment as far as I was concerned and, that's the impression I got.

THE COURT: Are you having any problems, are there any problems between you and her at work?

{288}

PATRICIA O'DAY: No. I consider her one of my best friends. She probably won't be any more though.

MR. HULTMAN: You drew a comparison and you said your feelings or your position. What are your feelings or your position as different from hers, vis-a-vis her position?

PATRICIA O'DAY: My feelings?

MR. HULTMAN: Yes. And your discussion.

PATRICIA O'DAY: More of an objective point of view I think.

I, I would rather deal with people on a one-to-one basis as people rather than race or creed.

I believe in human rights very strongly and I don't think it matters whether a person is an Indian or a black or whatever.

MR. HULTMAN: Did the other, did Mrs. Foss say anything in response to what was said?

PATRICIA O'DAY: Did she say anything?

MR. HULTMAN: Yes.

PATRICIA O'DAY: No. We discussed it today and they agreed that, well, at that time, you know, we all generally felt that Shirley felt this way. Okay.

But today they agreed that they felt that she had meant it when she said it, you know.

MR. HULTMAN: Well, did you, is it fair for me to conclude that -- what did you conclude from the statement that {289} she made?

PATRICIA O'DAY: That she was prejudiced against Indians, that she had a greater sense of bias towards the Indian point of view rather than the man being on trial.

I think she -- that's the impression I got.

MR. HULTMAN: Would it be fair for me to conclude that you have just the opposite feeling?

PATRICIA O'DAY: I would say that I do but I, consciously.

MR. TAIKEFF: Which feeling may I ask Your Honor is Mr. Hultman inquiring about?

MR. HULTMAN: The reverse of the attitude that was expressed because she brought it up in her own words.

MR. TAIKEFF: No. Your Honor I think two attitudes have been spoken about. One of them is the consensus of the three workers. The other --

MR. HULTMAN: I'm referring to this woman and the woman that made the statement.

MR. TAIKEFF: Oh. I understand. Thank you.

MR. HULTMAN: Would you feel then with the feeling and the attitude that you have that you could not come into a courtroom and set aside that feeling that you've expressed on that occasion to her and be fair and impartial to someone who is not?

PATRICIA O'DAY: No. I'm not saying that at all.

{290}

I'm saying that I questioned, I questioned the process because I didn't know what process, legal process you go through to select a juror and I was just wondering if her, I don't know if Shirley can separate the two. That's your judgment or that's the Judge's judgment. That's not my judgment to make.

I'm merely stating my point of view and what I heard and I felt it was relevant. It was something that I had to say, something I had to question.

MR. HULTMAN: Well, that's good. That's good.

I have no further questions.

MR. TAIKEFF: I have but one question.

THE COURT: All right.

MR. TAIKEFF: Did you read the Forum today?

PATRICIA O'DAY: No. I haven't yet.

MR. TAIKEFF: How did you know she was on the jury?

PATRICIA O'DAY: I work with her and she had to call in and tell that she was going to be gone. Word travels fast in an office.

MR. TAIKEFF: And what motivated you to call the Clerk? Not general principles. What immediate specific fact?

PATRICIA O'DAY: I felt it was unfair. I felt that, I had heard her make the statement and I didn't want there to be any question as to the credibility of any juror that I knew of as to how they were going to try that man.

MR. TAIKEFF: Has anyone contacted you and motivated {291} you in any way to take the action which you took?

PATRICIA O'DAY: No.

MR. TAIKEFF: I have no further questions, Your Honor.

MR. HULTMAN: May I just ask one more, Your Honor.

What is your relation; how good a friend are you?

PATRICIA O'DAY: Very good friends.

MR. HULTMAN: How long approximately have you known Miss Klocke?

PATRICIA O'DAY: Five years, going on five years.

MR. HULTMAN: I have no other questions, Your Honor. Thank you.

THE COURT: I have just one additional question.

In the five years that you've known her have you had any other discussion about the Indian race of people or bias or prejudice or human rights?

PATRICIA O'DAY: Well, in the, saying many generalities certainly. Probably there are many things that go on in society and we try to discuss them, you know, and we try to be as intelligent in some things in life as we can.

THE COURT: No. I mean you and Miss Klocke.

PATRICIA O'DAY: Oh. No. Not specifics; no.

THE COURT: May I have the statement. Thank you for coming.

MR. LOWE: Your Honor, before these three witnesses are released I would suggest that the appropriate, I would like {292} the Court to extend thanks to these ladies for coming forward. It's certainly an act of bravery for coming forth in the peer pressures in society and secondly I would think there could be some measure taken to the extent possibly to keep them from being embarrassed by this.

THE COURT: You may leave the room.

Mike, would you contact whoever's going to appear in this sentencing and tell them we're going to be a little late.

MICHAEL NELSON: I just did.

THE CLERK OF COURT: Can they leave the building, Your Honor, the witnesses?

THE COURT: Just have them stand by for a moment. It will just be a moment.

{293}

THE COURT: I now have to decide what to do with reference to Miss Klocke's service on the jury. Do you desire to express yourself on that?

MR.HULTMAN: No, Your Honor. The government certainly knows the seriousness of a matter of this kind. I think there is a good question that goes to whether or not one single remark and the circumstances and from the point of view, and without knowing the total conversation and remarks as just made, she's evidentily shown no prejudices of any kind in any other conversations. But at the same time I want to in no way minimize the impact. So I would certainly indicate to the Court that I think the Court should give the highest consideration to the impact of what the juror has said and the government will certainly in no way resist in any way whatever the Court's decision is.

THE COURT: Mr. Taikeff, do you have any thoughts on that?

MR. TAIKEFF: If Your Honor is asking generally what we think should be done, I would have an answer, but I think Your Honor is asking whether we are specifically asking whether she should be stricken from the jury. If that's Your Honor's question, we are not able to say yes or no at this time. Then that would bring me to the answer of the other question; namely, what I think we should do.

 

THE COURT: What do you think we should do?

{294}

MR. TAIKEFF: I think we should have a voir dire of her after which defense will take a position on it.

THE COURT: I have concluded that certainly if she is released that she should be told why she's being released.

MR. TAIKEFF: I would have no objection to that.

THE COURT: I don't know what Mr. Lowe feels about that.

MR. LOWE: I only know the difficulty in getting people to come forward to do something like that and unless there is some purpose to be gained in the trial, if the decision is made eventually to release her, I wonder whether there is really any need to release her. Didn't we last summer with that woman, did the Court tell her why or was there just --

MR. HULTMAN: He brought her in and questioned her, remember, John.

MR. LOWE: I have real apprehensions when those three people are going to be on the spot but I don't take a firm position.

MR. CROOKS: Your Honor, if I could make an observation. This is a rather perplexing thing, obviously. If in fact what this woman has said is true and if in fact that is an opinion, then she has at the very least placed her responsibility on the question and creates a serious problem and my suggestion would be that whether she's going to be {295} released or not, the matter should be taken up with her. If for no other reason than fairness to her.

THE COURT: I feel that.

MR. CROOKS: Because certainly this is on the face of it a very devastating type of thing to have to go on without an opportunity of some sort to explain.

MR. SIKMA: Your Honor, it's possible she may not even remember the conversation.

THE COURT: There's no question about it. I'm going to bring her in and -- is she still here?

THE CLERK: I asked the marshal to retain the jury.

MR. TAIKEFF: Your Honor, while that's happening, I would like not just by way of making small conversation but because I recognized that we take a small legal position at the early stages of this case to most respectfully call to Your Honor's attention how difficult it is to root out this kind of fact of life in spite of the fact that Your Honor spent a most generous portion of the Court's time in a thorough voir dire and allowed Counsel to inquire. I say this not so much by way of making a record, I'm motivated primarily by the opportunity to perhaps plant the seed in Your Honor's mind for future cases where some attorney may come forward and suggest to Your Honor that although there are some and many very fine citizens in the city, there are some serious problems along these lines.

{296}

THE COURT: Mrs. Klocke, we asked you to come in to show you this statement.

Do you care to make any response to that?

MRS. KLOCKE: Yes. Your Honor, I did say this. And like I said in court that I would put all prejudices aside and I would render a fair verdict and I still mean that, too.

THE COURT: Okay. Thank you.

Do you have any questions?

MR. TAIKEFF: Could I confer with Mr. Lowe and the defendant for a moment.

THE COURT: Yes.

MR. TAIKEFF: I would like to put a limited number of questions to the juror, Your Honor.

THE COURT: You may.

MR. TAIKEFF: Do you understand that you will have to make a very serious, conscious effort to make sure that the opinion which you have and expressed does in any way come to play in this case because of the seriousness of the consequences?

MRS. KLOCKE: Yes, I do.

MR. TAIKEFF: We're satisfied, Your Honor.

THE COURT: Mr. Hultman. Do you desire to examine?

MR. HULTMAN: Yes, I would just like to have a few questions, Your Honor.

Mrs. Klocke, were you expressing something on that occasion which was a feeling that you had and is a feeling that, {297} as you expressed in the court, that without any question you could set aside, as I think I asked a number of questions about it, all having various feelings and emotions and so forth in varying degrees, that that expression that you made at that time is not so deep rooted or so strong or so firm with you that in a matter of this kind that you could honestly and fairly --

MRS. KLOCKE: Yes, sir.

MR. HULTMAN: -- do what the Court has discussed and the lawyers have discussed?

MRS. KLOCKE: Yes, sir.

MR. HULTMAN: Without the fact that the experience now that you in effect, somebody said something and returned it here, would that in any way have any impact now on you in going back to the jury room?

MRS. KLOCKE: No.

MR. HULTMAN: Would you now, feeling that you might have some compunction to do something for the defendant that otherwise maybe had this occasion not occurred that you would be feeling different about?

MRS. KLOCKE: No, I don't. I would still base any verdict on the evidence and the court alone and I really feel I could do it.

MR. HULTMAN: I have no further questions.

THE COURT: Thank you for coming in. I will have to {298} make a decision as to what your status will be and for the time being you can return to the jury and I would suggest you just not comment on it.

The jury may now be taken back to their rooms.

MR. TAIKEFF: Your Honor, so that the record is clear, when we said we're satisfied, we not only meant with the scope of the inquiry but we do not wish to move to exclude the juror.

THE COURT: I interpreted your remark that way. I have some concern in my own mind about this juror.

MR. CROOKS: Your Honor, could the government have overnight to fully make a response? I think it was pointed out with Mr. Hultman, this experience of coming in here may have adverse consequences to the United States and we are not really prepared to say whether or not we might not at this point want to challenge the juror.

MR. HULTMAN: She now may feel an obligation, Your Honor, in order to purge herself from what others have now accused her of, this would be her genuinely and honestly, I'm just saying the impact of genuinely trying to purge herself and this experience and the accusation would have an impact upon what her decision would be.

MR. LOWE: May I make two comments. First of all, it is interesting to hear Mr. Hultman make that argument because he was making the other argument when we uncovered prejudiced, and although it would interfere -- but secondly, we had a {299} potential problem, in any case, where we only have two alternates that we could end up with a mistrial if more than two people become disabled or sick or anything of that nature. That is one of the facts that the defendant at this early stage of what will be a long trial is considering. And we feel he has a constitutional right not to have that juror removed without his motion in a situation that could lead to a constitutional detriment. We're not just waiving the fact, we're objecting to people with prejudiced during the voir dire and now we say we want to keep the juror. There are different factors that play.

THE COURT: I'm aware of that. That is why I said I wanted to think about it overnight.

MR. CROOKS: I realize, obviously, there are considerations on both sides. A normal reaction from strictly the government wishes of a to win position would be this is a great juror, but obviously that's not our concern. Our concern is a fair juror and contrary to what Mr. Lowe may believe. Secondly, as we expressed the possible rebound affect which would in effect affect our outcome and have just a reverse consequence. I simply ask we be allowed to think about it overnight.

THE COURT: I suppose if I think about it overnight you will have an opportunity to think about it overnight.

Thank you for coming in.

 

VOLUME III

Pages 300-520

{300}

J. GARY ADAMS

FRIDAY MORNING SESSION

March 18, 1977

Whereupon, the following proceedings were had and entered of record on Friday morning, March 18, 1977, at 9:00 o'clock, a.m., the Defendant being present in person:

MR. HULTMAN: I understand.

There is one other matter, Your Honor, and that is, on the record I would like to indicate to the Court that, as concerning the matter that was taken up in chambers without referring to it specifically other than that.

The Court indicated that the Government would have until the morning to make an indication and the indication that the Government would like to put on the record at this time is the fact that we join in the motion that the defendants made late yesterday afternoon.

THE COURT: The Court will then proceed pursuant to the agreement of counsel on that matter.

MR. TAIKEFF: Yes, Your Honor.

THE COURT: The jury may now be brought in.