United States of America, Appellee,
vs.
Leonard Peltier, Appellant.

No. 77-1487
United States Court Of Appeals, Eighth Circuit
585 F.2d 314, 1978 U.S. App. Decision
September 14, 1978, Decided

Appeal from the United States District Court for the District of North Dakota William M. Kunstler, New York City (argued), and Michael E. Tigar, Washington, D.C. (argued), Arthur Kinoy, New York City, on brief for appellant. Evan L. Hultman (former U. S. Atty.), Waterloo, Iowa (argued), Lynn E. Crooks, Asst. U. S. Atty., Fargo, N. D., Robert L. Sikma, Asst. U. S. Atty., Sioux City, Iowa, and Richard E. Vosepka, Jr., Asst. U. S. Atty., Minneapolis, Minn., on brief for appellee.

Before GIBSON, Chief Judge, and ROSS and STEPHENSON, Circuit Judges. n*

{F.2d 318}

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 1114. Robideau and Butler were jointly tried by a jury and were acquitted. The government dismissed the charges against Eagle. 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.¹ The agents were following three individuals riding in a red and white van that had entered the compound shortly before them.² 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 attributable 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 bullet 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, small 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 Williams’ hand and fired. The bullet ripped through Williams‘ hand, into his {F.2d 319} 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 few inches and shot Coler through the jaw. The shell exploded inside his head, killing him instantly.

The evidence against Peltier was primarily circumstantial. Viewed in the light most favorable to the government,³ the strongest evidence that Peltier committed or aided and abetted the murders is as follows:

1. The van that the agents followed into the Jumping Bull Compound was occupied by Peltier, Norman Charles and Joseph Stuntz.

2. At the time, Peltier had access to information that he was being followed by FBI agents. One of the occupants 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 Williams’ 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 stipulated at trial that there was an arrest warrant outstanding, 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.

4. Michael Anderson, one of the AIM members who was firing at the cars from one of the houses in the Jumping Bull 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 commenced.

5. According to the doctor who performed the autopsies, the agents were shot with a high velocity, small caliber weapon. Peltier’s AR-15, the civilian counterpart of the M-16, was the highest velocity weapon fired that day.⁴ 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 Anderson went south after leaving Rosebud. Anderson testified that he loaded their car with weapons, one of which was an AR-15, before they left South Dakota. On {F.2d 320} September 10, 1975, the car exploded on the Kansas Turnpike, and police recovered from the car the AR-15 which the government contended Peltier used on the day of the murders.

6. Ammunition components linked ballistically to the same AR-15 were found at the crime scene. The ballistics 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 discussing certain details of the murders on the evening of June 26, 1975.

8. 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 thumbprint.

After a twenty-five day trial, Peltier was convicted by a jury of both counts of first-degree murder. He alleges on appeal⁵ that:

1. Certain evidence introduced at trial was so prejudicial 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 available 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 requested 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.

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, 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 {F.2d 321} was necessary to negate the participation in the actual murders by others who were present.

In the course of introducing this evidence, the government offered evidence which the defendant describes as inadmissible other crimes and weapons evidence. Most of this evidence related to the circumstances 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. Other Crimes Evidence

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 admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

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, 837 n.2 (8th Cir.), Cert. denied, 431 U.S. 972, 97 S. Ct. 2936, 53 L. Ed. 2d 1070 (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 (8th Cir.), Cert. denied, 434 U.S. 921, 98 S. Ct. 395, 54 L. Ed. 2d 277 (1977); United States v. Maestas, supra, 554 F.2d at 837; United States v. Clemons, 503 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 cumulative 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, 581 F.2d 1294, at 1298-1299 (8th Cir. 1978); United States v. Weir, 575 F.2d 668, 670 (8th Cir. 1978); United States v. Matlock, 558 F.2d 1328, 1332 (8th Cir.), Cert. denied, 434 U.S. 872, 98 S. Ct. 218, 54 L. Ed. 2d 152 (1977); United States v. Maestas, supra, 554 F.2d at 836.

We will discuss each claim of erroneously admitted evidence separately.

1. Milwaukee, Wisconsin Incident

At the trial, the parties stipulated to the following facts: On November 22, 1972, Peltier was charged with attempted murder in Milwaukee, Wisconsin. He was arrested, pleaded not guilty, and was released on bond. On July 29, 1974, he failed to appear for trial on the charge, his bond was forfeited, and a bench warrant was issued for his arrest. Peltier was aware of the outstanding arrest warrant for attempted 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. denied, 385 U.S. 1029, 87 S. Ct. 759, 17 L. Ed. 2d 676 (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 {F.2d 322} 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 a Wisconsin warrant. Furthermore, the government took steps to minimize the danger of unfair prejudice. The fact that the person Peltier allegedly assaulted in Wisconsin was an off-duty police officer was withheld 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 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 Wisconsin and his alleged flight to avoid trial was introduced to show a possible motive the defendant may 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.⁶

2. Ontario, Oregon

On November 14, 1975, Oregon State Police stopped two vehicles near Ontario, Oregon: a motor home and a Plymouth 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 authorities recovered from the motor home Special Agent Coler’s revolver in a paper bag bearing Peltier‘s thumbprint, and from the station wagon several shell casings that had been fired from Coler’s revolver.

The defendant alleges error in the admission of much of the “other crimes” evidence offered by the government relating to the Oregon incident.

A. Evidence of flight

In addition to the testimony that Peltier fled the scene, turning to fire at the arresting officer, the government introduced 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) and the pieces of paper described in (iii) 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 before the jury as having a tendency to prove his guilt.” Allen v. United States, {F.2d 323} 164 U.S. 492, 499, 17 S. Ct. 154, 41 L. Ed. 528 (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, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); Alberty v. United States, 162 U.S. 499, 511, 16 S. Ct. 864, 40 L. Ed. 1051 (1896); Hickory v. United States, 160 U.S. 408, 418, 16 S. Ct. 327, 40 L. Ed. 474 (1896), 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 defendant‘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 behavior 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 Bailey v. United States, 135 U.S.App.D.C. 95, 416 F.2d 1110, 1115 (1969), “guilt, as a factual deduction, must be predicated upon a firmer foundation than a combination of unelucidated presence and unelucidated flight.”

We hold that there was a sufficient number of such evidentiary manifestations to make evidence of flight and of resistance to arrest⁷ 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 immediate flight. Second, the fact that the motor home and station wagon were traveling arsenals linked by communication devices 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 thumbprint on it, was one of the key pieces of evidence against Peltier. Under these circumstances, 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.⁸ In support of his argument, he cites United States v. White, supra, 488 F.2d 660, and United States v. Jackson, 572 F.2d 636 (7th Cir. 1978).

In United States v. White, supra, 488 F.2d at 662, the defendant fled from police attempting to arrest him for an incident that had occurred 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 {F.2d 324} flight instruction was not appropriate because evidence of flight was not sufficiently reliable 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 substantial 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 indicates, there was sufficient circumstantial evidence that the defendant knew he was wanted for the murders of the F.B.I. agents.

Peltier also argues that, notwithstanding the relevance of the evidence, its probative value was substantially outweighed 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 context of this case, the evidence did not prejudicially distort the general case against the defendant. As we related above, evidence pertaining to a great number of firearms and ammunition components was admitted as part of the government‘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 firearms evidence is highly prejudicial. See, e. g., United States v. Robinson, 560 F.2d 507, 513-14 (2d Cir. 1977) (en banc), Cert. denied, 435 U.S. 905, 98 S. Ct. 1451, 55 L. Ed. 2d 496 (1978); United States v. Warledo, 557 F.2d 721, 724-26 (10th Cir. 1977). Furthermore, the evidence was not presented in an inflammatory 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 instruction⁹ 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 evidence of the Oregon incident would have been unnecessary. As a general rule, the government is not bound by the defendant’s offer to stipulate. United States v. Spletzer, 535 F.2d 950, 955 (5th Cir. 1976); United States v. Caldwell, 178 U.S.App.D.C. 20, 46, n.134, 543 F.2d 1333, 1359 n.134 (1974); United States v. Brickey, 426 F.2d 680, 686 (8th Cir.), Cert. denied, 400 U.S. 828, 91 S. Ct. 55, 27 L. Ed. 2d 57 (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, 79 S. Ct. 40, 3 L. Ed. 2d 64 (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.”

As the court pointed out in United States v. Spletzer, supra, 535 F.2d at 955, however, this rule is subject to the provisions of Fed.R.Evid. 403. The Advisory Committee in its notes accompanying Rule 403 suggested that:

{F.2d 325} In reaching a decision whether to exclude on grounds of unfair prejudice * * * (t)he availability of other means of proof may also be an appropriate factor.

As a general rule, trial courts should seriously consider 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, however, 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 defendant’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 .3030 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 .3030 rifle stolen from Oregon.

The government argues that this testimony was relevant to prove Peltier was indeed the person who fled from the 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 continuing 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, however, again we are convinced the error was harmless beyond a reasonable doubt. United States v. Weir, supra, 575 F.2d at 671. See Harrington v. California, 395 U.S. 250, 23 L. Ed. 2d 284, 89 S. Ct. 1726 (1969); Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (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.¹⁰

B. Weapons Evidence

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 those firearms. Included in the government‘s presentation was evidence of other firearms and explosive devices. Peltier vigorously disputes the admissibility of this evidence, 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 {F.2d 326} splitting up. Robideau, Charles, and Anderson then proceeded south, and the car in which they were riding exploded on the Kansas Turnpike. Police recovered a large number of weapons and explosives from the car, including the AR-15 linked to the crime 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 objects. 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, however, able to remove the bolt, place it on another AR-15, and conduct limited comparisons.

Defendant also objected to the pictures of the hand grenades on the grounds of relevance and prejudicial impact. The government argued that the hand grenades found at Wichita were the type found at Tent City shortly after the murders, and that the pictures of 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 outweighed by the danger of unfair prejudice to the defendant. 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 evidence could not be labeled highly inflammatory and prejudicial, in light of the wealth of firearms evidence admitted 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 held above, the government generally is not bound by an offer to stipulate, and we are not convinced that this evidence requires a different rule.

{F.2d 327} 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,¹¹ 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 suitcase full of blasting caps;

d. a bag containing spent rounds and live ammunition for various calibers;

e. walkie-talkie radios.

Peltier again alleges that the evidence of unrelated firearms and other weapons was unduly prejudicial because of its inherently inflammatory 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 cartridges 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 admitted, 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 persons, 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 .3030 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 .3030 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, including the .3030 rifle stolen from the Oregon ranch house, or 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 directly related to the crime, were admitted without objection. Some of these weapons and pictures of weapons were objected 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 {F.2d 328} 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.I. 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, 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 compulsory process and to a fair trial.

A. Refusal to Give Defense Instruction

The instruction which the court refused to give, Defendant‘s Proposed 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 witness 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, however 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, 95 S. Ct. 1123, 43 L. Ed. 2d 396 (1975); United States v. Vole, 435 F.2d 774, 776-77 (7th Cir. 1970).