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UNITED STATES COURT OF FEDERAL CLAIMS

LAVETTA ELK, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

) ) ) ) ) Docket No. 05-186L ) ) ) )

Pages: Place: Date:

1 through 271 Rapid City, South Dakota April 28, 2008

HERITAGE REPORTING CORPORATION Official Reporters 1220 L Street, N.W., Suite 600 Washington, D.C. 20005-4018 (202) 628-4888 [email protected]

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS LAVETTA ELK, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) Docket No. 05-186L ) ) ) )

3rd Floor Courtroom U.S. Courthouse 519 9th Street Rapid City, South Dakota Monday, April 28, 2008 The above-entitled matter came on for trial, pursuant to notice, at 10:00 a.m. BEFORE: HONORABLE FRANCIS M. ALLEGRA Judge

APPEARANCES: For the Plaintiff: ADAM D. HOROWITZ, ESQ. Herman & Mermelstein, P.A. 18205 Biscayne Boulevard, Suite 2218 Miami, Florida 33160 (305) 931-2200 For the Defendant: STEVEN D. BRYANT, ESQ. SARA E. COSTELLO, ESQ. U.S. Department of Justice Environment & Natural Resources Division P.O. Box 663 Washington, D.C. 20044-0663 (202) 305-0424 LANNY ACOSTA, JR., ESQ. U.S. Army Legal Services Agency 901 North Stuart Street, Suite 400 Arlington, Virginia 22203 (703) 696-1636

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C O N T E N T S WITNESSES: For the Plaintiff: Lavetta Kathy Elk Daverine Elk David Swallow, Jr. Noritta High Hawk Jerilyn Elk For the Defendant: (None) 62 213 221 231 253 100 -227 237 -207 ---------DIRECT CROSS REDIRECT VOIR RECROSS DIRE

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E X H I B I T S PLAINTIFF'S EXHIBITS: PX-1 PX-2 & PX-3 PX-4 PX-5 PX-6 and PX-7 PX-8 PX-9 PX-10 thru PX-18 PX-21 PX-22 PX-23 thru PX-26 PX-27 PX-29 thru PX-33 PX-36 thru PX-40 PX-41 and PX-42 PX-43 thru PX-46 PX-47 and PX-48 PX-49 PX-51 PX-52 PX-53

IDENTIFIED 13 13 13 13 13 13 13 13 13 13 13 13 13 13 13 13 13 13 13 13 13

RECEIVED (withdrawn) 24 -(withdrawn) 24 13 (withdrawn) 24 24 24 24 24 24 24 (withdrawn) 24 (withdrawn) 24 -(withdrawn) 24

DESCRIPTION (Joint Exhibit) (Not described) Cangleska records SGT Kopf mil. records (Not described) Manlove expert report (Joint Exhibit) (Not described) (Not described) Complaint Elk responses (Not described) (Not described) (Not described) Elk statements (Not described) (Not described) (Not described) (Not described) (Not described) DoD record

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E X H I B I T S DEFENDANT'S EXHIBITS: DX-1 DX-2 DX-3 and DX-4 DX-5 DX-6B and DX-6C DX-9, 9A thru 9H DX-11 DX-12 DX-13 DX-14 DX-15 thru DX-17 DX-18 DX-19 DX-20

IDENTIFIED 28 28 28 28 28 28 28 28 28 28 28 28 28 28

RECEIVED 41 41 41 --(rejected) -42 42 (withdrawn) 42 42 42 42

DESCRIPTION Expert report MMPI report (Mills) (Not described) Stephenson report Medical records Depositions BIA incident report Interrogatory answers Interrogatory supplemental answers Admissions/responses (Not described) Elk statement (Not described) MMPI report (Manlove)

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E X H I B I T S JOINT EXHIBITS: JX-1 JX-2 thru JX-4 JX-5

IDENTIFIED 9 9 43

RECEIVED 9 9 43

DESCRIPTION Article 15 findings (Not described) Stipulations

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 likewise? good.

P R O C E E D I N G S (10:00 a.m.) THE CLERK: The United States Court of Federal The Honorable Francis M. Allegra

Claims is now in session. presiding.

Please be seated. THE COURT: We're here this morning to conduct

trial in Lavetta Elk v. United States, case number 05-186L. Mr. Horowitz, you're over there. Okay. Very

Have you given a card with your identifying

information to the reporter? MR. HOROWITZ: THE COURT: I have. Mr. Bryant, have you

Very good.

MR. BRYANT: THE COURT:

Yes, Your Honor. All right. What I want to do is to

deal with a variety of preliminaries so that we're going to do several things here right at the outset. So one is that

we're going to deal with exhibits, and as I indicated to you all at the pretrial conference, we're going to try to admit as many of those as possible. At least -- sort of going over a few logistical things, so we started at 10:00 today. the remaining days this week. We start at 9:30 for

Ms. Dawley here is the

reporter, and I'm going to ask that if for some reason at any point she doesn't hear somebody or she loses signal,

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that she would stand up.

That will be my cue that

something's amiss and that the witness or the attorneys that are speaking need to pause. Basically the way I see this is we'll start first by going through the exhibits and getting those in, as I said, as many as possible en masse. If there's objections,

if they're the types of objections that we can deal with here at the outset, we'll do so, and if they're not, then we'll take them up, in conjunction with particular witnesses. A few other preliminary things. Let me just ask.

Is anybody going to be invoking Federal Rule of Evidence 615? MR. BRYANT: For excluding witnesses, Your Honor?

Yes, we are for fact witnesses. THE COURT: All right. So fact witnesses then

are going to be excluded.

The way that works is that I need

the two of you to police the courtroom for me, because you know who's a fact witness and who's not and who's just here, for example, maybe as opposed to not being a witness at all. All right. So I need you to, at least when we get to the

point of opening arguments -- you don't have to do it right now -- to make sure that whenever you hear the door go open and closed, or periodically you're going to turn around and make sure, because I'm not going to know what these people

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look like. All right. experts. So the -- and it doesn't apply to

The experts on both sides can stay here through

the remainder of the proceedings. All right. Let's go ahead and deal with the

exhibits next, and, again, we'll deal with several things here. Let's start with Plaintiff's exhibits. Am I correct

at this point?

You've already distributed, because the

binders I have up here represent -- stay seated; it's actually easier, Mr. Bryant. As far as I know, you have You have one set of

three different sets of exhibits. Joint.

Then you have a set of Plaintiff's and a set of Is that correct? Yes, Your Honor. Okay. So let's -- obviously we don't I'm looking up here at

Defendant's.

MR. BRYANT: THE COURT:

need to deal with the Joint ones. what I have.

Have you distributed the Joint exhibits yet? Yes, Your Honor. All right. Because I'm looking at

MR. BRYANT: THE COURT:

the spines of the binders I have here, and I don't see a set that says Joint. MR. BRYANT: It may not have a Joint. It's the

thinnest one, Your Honor. three-ring binders.

There's several that are the big

There's one that's -- it's very thin. It's a

If we've not brought that up there, my apologies.

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white binder that's thin. THE COURT: MR. BRYANT: THE COURT: MR. BRYANT: THE COURT: No. I don't see that binder.

May I approach? You may. (Handing documents.) All right. My apologies.

So we're going to start We have four

out with the Joint exhibits. of these. Is that correct? MR. BRYANT: MR. HOROWITZ: THE COURT:

So am I correct?

Correct. Yes, Your Honor. And so I'm going to

All right.

operate under the assumption that obviously there's no problems with these, so we'll admit into evidence then Joint Exhibits 1 through 4. (The documents referred to were marked for identification as Joint Exhibits 1 through 4 and received in evidence.) THE COURT: Plaintiff's exhibits. All right. Now let's move to the

Have you distributed, by the way, the Is

original one, the one that has the colored stickers? that the one the reporter has? MR. BRYANT: MR. HOROWITZ: THE COURT: Yes, Your Honor. Yes.

Okay.

So I'm seeing two volumes of

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Plaintiff's exhibits, and it is, Mr. Horowitz, 1 through 28 inclusive. Is that correct? MR. HOROWITZ: THE COURT: That's correct. That's the

Actually I take it back.

first volume is 1 through 28, and the second volume is 29 -and I see some of these are withdrawn. binders still or -MR. HOROWITZ: There should be a page that says Are they in the

they're withdrawn if it's been withdrawn. THE COURT: All right. Well, then they're not

inclusive, so let's go back and just make sure I know what we're talking about before we find out whether Mr. Bryant has any objections. All right. So I have particular

pages -- is that what's withdrawn, Mr. Horowitz? MR. HOROWITZ: THE COURT: No. For instance, if --

You can stay seated. If Exhibit 20 was withdrawn,

MR. HOROWITZ:

rather than renumber everything, we just put in a page that said, Withdrawn. THE COURT: Right. But I'm looking, for

example -- let's look at Number 5 on your list. MR. HOROWITZ: THE COURT: Okay.

And it says, Military personnel

records of Sergeant Kopf and Plaintiff's Army documents. And that's DEF 0104 through DEF 0305. Then it says 306 to

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450 are withdrawn.

So those are pages of Exhibit 5 --

correct? -- that are withdrawn. MR. HOROWITZ: THE COURT: Correct. Not the entire exhibit.

Okay.

MR. HOROWITZ: 306? THE COURT:

The entire exhibit -- I'm sorry.

I'm looking right at your list, so Correct. So 104 to 305

take a look at your -- 306 to 450. remains. THE COURT: All right.

So -- but those are pages

of the exhibit that are withdrawn, so the exhibit's there, but it's smaller than it was before. MR. HOROWITZ: THE COURT: Exactly. But some of these are -It's the It starts with

All right.

MR. HOROWITZ: Bates number. page 104. THE COURT:

It's not the pages.

It doesn't start with page 1.

All right.

I understand what you're

saying, but when you're saying something's withdrawn, are they in the book or are they not in the book? MR. HOROWITZ: are in the book. removed. THE COURT: They're not in here. Correct. The ones that are not withdrawn

The ones that are withdrawn have been

MR. HOROWITZ:

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 here. withdrawn. withdrawn?

THE COURT:

Okay.

And then -- but in some cases, Correct?

it looks like entire exhibits have been withdrawn. MR. HOROWITZ: THE COURT: Exactly.

All right.

So let's just make sure So what I see is 1 But I see 6

that we know what we have so far.

through 4, and then 5 is some pages withdrawn. through 18. Correct? MR. HOROWITZ: THE COURT: Correct.

And I am right that 19 is entirely

MR. HOROWITZ: THE COURT: Correct? MR. HOROWITZ: THE COURT:

Correct. And that 20 is entirely

All right.

Correct. Now, let's keep going on Is that entirely

All right.

The next one I see withdrawn is 28.

withdrawn? MR. HOROWITZ: THE COURT: Yes. And same thing on 34.

Okay.

MR. HOROWITZ: THE COURT:

Correct. And same thing 35.

Okay.

MR. HOROWITZ: THE COURT: portion of 49.

Correct. And also withdrawn are a

Okay.

Is that correct? Correct.

MR. HOROWITZ:

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THE COURT: No.

All right.

And a portion of 50. Correct?

50's entirely withdrawn.

MR. HOROWITZ: THE COURT:

In its entirety. And then am I right that Correct?

All right.

54 through 60 are all withdrawn? MR. HOROWITZ: THE COURT: Yes.

All right.

So let's go back then and So we have then 1

talk about what we have here.

All right.

through 18, recognizing that we have some pages missing from -- you know, that are being withdrawn from one of those, but we have 1 through 18. 27. We have 29 through 33. Then we have 21 through

We have 36 through 49, although And then we have 51

49 is a somewhat diminished exhibit. through 53. Correct? MR. HOROWITZ: Correct.

(The documents referred to were marked for identification as Plaintiff's Exhibits 1 through 18, 21 through 27, 29 through 33, 36 through 49, and 51 through 53.) THE COURT: All right. Now, to you, Mr. Bryant,

any objections as to any of those exhibits, please? MR. BRYANT: Yes, Your Honor. The first one is

actually a Joint exhibit, so we can probably cross that off

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of -THE COURT: here so -MR. BRYANT: That's a Joint exhibit. objection. So PX-1 should be crossed off. Number 2, we do not have an Yes. I don't want two of anything

Number 3, we do not have an objection. THE COURT: MR. BRYANT: No. I want to know the ones you do. Fair enough, Your Honor. That's hearsay, Cangleska

Okay.

Number 4 we have an objection. records.

That's a women's advocacy group that the Plaintiff

spoke with. THE COURT: second. numbers. MR. BRYANT: Fair enough. All right. We do All right. We'll deal with it in a

Right now I'm just trying to figure out the

object to Sergeant Kopf's military records to the extent that they weren't withdrawn within here as being irrelevant. THE COURT: MR. BRYANT: THE COURT: All right. The map we don't object to. I want to know the ones you're

objecting to, Mr. Bryant. MR. BRYANT: a Joint exhibit now. THE COURT: MR. BRYANT: I'm sorry, Your Honor. Number 9 is

Cross that off. All right. The documents relied on by the

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experts, we're not going to object if they're used for the same purpose for both sides. that. That's all I can say with

There's a number of these documents relied on by

Plaintiff's experts through 18, so if they're going in for the purpose of what that expert relied on, we don't object to that purpose. THE COURT: MR. BRYANT: We object to that. THE COURT: MR. BRYANT: THE COURT: MR. BRYANT: You object to the complaint? Well, I mean, it's -On what basis? Cite a rule. All right. The paragraph 22 is the complaint.

In terms of the Plaintiff's

allegations, her statements in and of themselves would be hearsay for purposes of the trial. is -THE COURT: understand your point. MR. BRYANT: THE COURT: Okay. There's no need -- once something's Well, there's an evidentiary -- I I mean, the complaint

in the record, it's in the record. MR. BRYANT: Fair enough. We would object to the

responses by Ms. Elk to interrogatories and other discovery requests, but they have qualified them by saying to the extent that their expert relied on them. Again, for that

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purpose, we're not objecting, but otherwise we would. THE COURT: MR. BRYANT: What are the numbers? 23 through 26, Your Honor. 27 we

would object to for Plaintiff putting it into evidence. Same for 29. evidence. We'd object to Plaintiff putting that into No objection to 31. But all of these are

30 object to. THE COURT:

All right.

relied on by Plaintiff's experts, so if they're only being brought up essentially as an indication of what they relied upon, then you don't have an objection to that. MR. BRYANT: That's correct, Your Honor. 41 we

would object to for Plaintiff putting her statement into evidence. that back. Same with 42. Same for 45 -- actually I take 51, for Plaintiff putting

No objection to 45.

that into evidence.

And 53 we'd object to. All right. Let's go back through

THE COURT: these.

Number 4 is what, Mr. Horowitz? MR. HOROWITZ: These are records from Cangleska,

a women's advocacy support group, and to make things simple, I can withdraw the majority of these documents and just talk about a few isolated documents. THE COURT: Pages, you mean? Yes. Go ahead, sir. What

MR. HOROWITZ: THE COURT:

All right.

pages do you want to focus on?

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MR. HOROWITZ:

Sure.

Only pages 3 and 4, 6 and

Everything else is withdrawn. THE COURT: All right. So Exhibit 4, the pages

you want now are 3 and 4. MR. HOROWITZ: we'll withdraw. THE COURT:

What was the other page? 6 and 7 and 16. Everything else,

That last page number again?

I'm

MR. HOROWITZ: THE COURT: 16.

16. All right. So let's back then.

3 and 4 is what, Mr. Horowitz? MR. HOROWITZ: Page 3 and 4 are intake reports.

Lavetta Elk placed a call to this support group -THE COURT: that what you mean? MR. HOROWITZ: THE COURT: court document. Correct. And 6 and 7 looks like a Intake from this organization? Is

All right.

Correct? Yes. Not in this case. She

MR. HOROWITZ:

sought and obtained a restraining order. THE COURT: And 16 is what? Another intake record.

MR. HOROWITZ: THE COURT:

Intake for who? It pertains to Lavetta Elk,

MR. HOROWITZ:

seeking referral for the sexual assault by Cangleska, the

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Cangleska records. THE COURT: Mr. Bryant, these records, what's the

nature of your objection to those pages? MR. BRYANT: These are hearsay. These are

Plaintiff's own statements being -THE COURT: they? MR. BRYANT: I mean, I haven't seen the sort of They're business records, aren't

foundation for that, so, I guess, if that foundation is established, perhaps. THE COURT: I don't know. What are you going to do to establish

foundation that these are -MR. HOROWITZ: Well, number one, we're going to

have a representative from Cangleska here today who was an advocacy representative for Ms. Elk. THE COURT: Second --

And that person might be able to

confirm where these documents come from? MR. HOROWITZ: Yes. Second, they're also --

another hearsay exception is applicable, which is they're statements of Lavetta's for purposes of diagnosis or treatment. a referral. treatment. She's going to an advocacy group for purposes of She -- it's an aid of getting a diagnosis or And they also separately reflect Lavetta's

emotional and mental condition in providing -THE COURT: Let's do this on 4 then. What we're

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going to do on 4 is we're going to hold that objection and let you seek to admit those pages when the appropriate witness is on the stand. MR. HOROWITZ: THE COURT: Horowitz? MR. HOROWITZ: that one. I can save time. We can withdraw Okay.

5, what's your objection to 5, Mr.

All these documents are repeated. THE COURT: So 5 you're withdrawing. Yes. The next one I have --

MR. HOROWITZ: THE COURT:

All right.

now, we have a number of them here that Mr. Bryant objected to but didn't object, I guess, to the extent that all these reflected they were documents that were relied upon by a given expert. MR. HOROWITZ: Yes. I concur. I mean, the

documents that an expert relies on are not evidence if they wouldn't otherwise be admissible. on to sort of evaluate -THE COURT: only for that purpose. MR. HOROWITZ: The ones where its preface says, Just to the extent So effectively you're relying on them They only could be relied

Documents relied on by Plaintiff -- yes. that the expert relied on them. THE COURT:

Just as indication that that's the

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document the expert read in forming opinions. MR. HOROWITZ: Yes. And provided that the

ruling's consistent with the defense expert, not for the truth of the matter. THE COURT: I hear you. All right. So what does

that do, then, I guess, to the nature of your objections, Mr. Bryant, to the ones that have that preface? MR. BRYANT: To the extent they're relied on by

the expert, we don't object on that basis, but Plaintiff -I mean, if Plaintiff's counsel was referring to seeking treatment and the like, we'd point the Court to page 1 of this document, which -THE COURT: MR. BRYANT: back to page 1. Which document are you talking about? The same exact exhibit, but just go

This is -What's the number? Are we past 4 already? I'm past 4. Yes. I'm talking

THE COURT: MR. BRYANT: THE COURT: about -MR. BRYANT: THE COURT: MR. BRYANT: you, Your Honor.

Oh, I'm sorry.

I -- okay.

I said 4 we'd hold until we got to -Okay. I'm sorry. I didn't hear

Where are we now? We're dealing with the ones talking

THE COURT:

about -- that have the language that says, Document relied

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upon by expert. MR. BRYANT: THE COURT: No objection beyond -All right. So that -- all right. So

that applies to all of those like that, and that would apply -- am I correct, Mr. Bryant, then? -- to the ones in 23 through 30 that have that preface? MR. BRYANT: THE COURT: Mr. Horowitz? MR. HOROWITZ: It's a statement of Lavetta Elk to That's correct, Your Honor. Let's go to 41. What is this one,

law enforcement, and I can withdraw it. THE COURT: You can withdraw it? Yes. How about 42, Mr.

MR. HOROWITZ: THE COURT: Horowitz? MR. HOROWITZ: THE COURT:

All right.

Same. How about 51? (Perusing document.)

All right.

MR. HOROWITZ: MR. BRYANT: 51.

One second.

I actually withdraw the objection on

We're going to be using that as an exhibit. THE COURT: All right. So 51 is withdrawn as an

objection.

Okay.

The only other one you have then is 53,

Mr. Horowitz.

What's that? This is a public record, a

MR. HOROWITZ:

government record or action case referral, reflecting

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Lavetta Elk's calls to the defense hotline in connection with -THE COURT: record? MR. HOROWITZ: THE COURT: MR. BRYANT: Your Honor. THE COURT: what we have. MR. HOROWITZ: withdraw. THE COURT: All right. Go ahead. I have a couple more I'd like to All right. Let's go back and see Yes. Is this a Department of Defense

Mr. Bryant? Withdraw the objection to this one,

MR. HOROWITZ:

That will make things a little 47 and 48. And this may tie

simpler, to streamline things.

in the conversation we're going -- I know you wanted us to have later about the miscarriage issue and how that ties in to the expert. THE COURT: All right. I guess I might need some

clarification on that, based upon what you're saying, but we'll do that in a minute. MR. HOROWITZ: THE COURT: Okay. 47 and 48 we'll withdraw. Then let me go through

All right.

them and see what I have as a result of our discussions. All right. So I have -- I'm just going to read these

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through first, just to make sure I'm right, and then I'll indicate that they're admitted after that. So what I see admitted are Plaintiff's 2 and 3; 4 being held for the moment, waiting for a witness for its admission; Plaintiff's 6 through 8; Plaintiff's 10 through 18, some of those being covered by the caveat that's been explained regarding the use of documents that were reviewed by experts. Then I have Plaintiff's 21 through 27; Plaintiff's 29 through 33, also some of those covered by the discussions involving reliance upon the documents by experts. 46. Then I have 36 through 40, and I have 43 through Then I have -No. Not 49. Withdrawn entirely? Pages -- right. Just 91 to

Then I have 49.

MR. HOROWITZ: THE COURT:

Not 49. No.

MR. HOROWITZ: 103. I'm sorry. THE COURT:

All right. Correct.

The exhibit's 49.

Right?

MR. HOROWITZ: THE COURT: the book or not? MR. HOROWITZ: not in the book. THE COURT: Correct? All right.

Are the pages that are withdrawn in

The pages that are withdrawn are

Okay.

So 49.

Then 52 and 53.

Now, so one more time then, so let's

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make sure for both of you. What I see then is admitted would be 2 through 3, 6 through 8, 10 through 18, 21 through 27, 29 through 33, 36 through 40, 43 through 46, 49, and 52 and 53. MR. HOROWITZ: THE COURT: 52. MR. HOROWITZ: THE COURT: And I think that's it. All right. Mr. Bryant, any And we'll withdraw 52. You're going to withdraw

All right.

Okay.

objections to those that we missed? MR. BRYANT: THE COURT: evidence are: No, Your Honor. All right. So then admitted into

2 through 3, 6 through 8, 10 through 18, 21

through 27, 29 through 33, 36 through 40, 43 through 46, 49, and 53. (The documents referred to, having been previously marked for identification as Plaintiff's Exhibits 2 and 3, 6 through 8, 10 through 18, 21 through 27, 29 through 33, 36 through 40, 43 through 46, 49 and 53, were received in evidence.) THE COURT: Any questions about Plaintiff's

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exhibits beyond those that we've just discussed? MR. BRYANT: I do have one question, Your Honor.

On Plaintiff's Exhibit 4, the Cangleska records -THE COURT: MR. BRYANT: should say, the -- yes. Yes. The first two pages of that -- or I The first two pages of that, we

would want to use as exhibits ourselves if the others are going to -- I mean, I know that we're reserving that objection until trial, but it's our understanding that these documents were included within Plaintiff's Exhibit 4 until this moment. THE COURT: Well, that's fine, but why -- I mean,

you objected to 4, so how are you telling me now that you're going to rely upon it? MR. BRYANT: Well, I mean, to the extent if they

are admitted for business record exception or whatever the case may be, then we would want the full panoply of these documents admitted for -THE COURT: I don't see how you can object to the

exhibit, and then they say they're going to introduce particular pages, and then you're going to say that if I admit those pages, you want more pages included. understand what you're telling me. MR. BRYANT: Well, if these documents meet the I don't

standard of a business record exception, with respect to, in

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particular, page 1 explains what these records are about, and we can use this on cross-examination. It's fine. But

I'm just trying to make it clear for the Court that it will be helpful -- this particular document explains what these Cangleska documents are. THE COURT: Do you have an objection to -- if You just told me it was

it's hearsay, if it's hearsay. hearsay.

So all of a sudden because it's useful to you, it

became not hearsay? MR. BRYANT: It's contingent on the Court

allowing it in under the business record exception, if Plaintiffs establish that foundation. THE COURT: Well, if you're telling me it's

useful and if we have a -- I mean, I feel like you're wasting my time. I mean, either it is hearsay or it's not.

If you think it's covered by a business record exception, then you shouldn't be objecting to it, if you know that that's what's going to happen when they put the witness on the stand. MR. BRYANT: THE COURT: I really don't know, Your Honor. All right. Well, then, let's wait.

But he can admit whatever he wants to admit, and if you think you need something for purposes of cross-examination, you can try to use it at that point, subject to the same types of caveat, so you better make sure that you are

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establishing that something's a business record as well, because if you just try to pull some other documents out of this page that have not been validated by a witness and that witness is unavailable, they won't come in. understand? MR. BRYANT: THE COURT: Plaintiff's exhibits? MR. BRYANT: THE COURT: No, Your Honor. Mr. Horowitz? No other questions on the Yes, Your Honor. All right. Any other questions about Do you

MR. HOROWITZ: Plaintiff's. THE COURT: Defendant's exhibits.

All right. All right.

So let's turn to Mr. Bryant, do you have

an index for your binders? the binders. about. Okay.

I don't see anything in front of I see what you're talking

Oh, wait a minute.

This chart in the beginning is actually the index. So am I right? Let's just see if I can take a look

at the numbers here. We have -- what? -- 1 through 5, and then we have 6A, B, C -- I really wish you would have numbered these consecutively. I thought we made that kind of clear during

the pretrial discussions, because it gets very confusing when we start talking about 9A, 9B, 9C, et cetera. All right. So let's just go with what we have

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here.

So we have 1 through 5. MR. BRYANT: THE COURT:

Then we have 6A, 6B, 6C --

6A, Your Honor, is now JX-2. All right. So that's gone? All

right.

And then so 6B, 6C, and then 7 and 8. MR. BRYANT: 7 and 8 are JX-3 and JX-4

respectively. THE COURT: Correct? MR. BRYANT: THE COURT: Yes, Your Honor. All right. And then when you say So they're withdrawn as well.

potential rebuttal exhibits, they're -- what? -- 9, 9A, B, C, 9D, 9E, 9F, 9G, 9H, 10 -MR. BRYANT: THE COURT: MR. BRYANT: THE COURT: through 20. Correct? MR. BRYANT: Yes, Your Honor. (The documents referred to were marked for identification as Defendant's Exhibits 1 through 5, 6B and 6C, 9, 9A through 9H, and 11 through 20.) THE COURT: All right. Let's go back and find Anything in 10 is now JX-1, Your Honor. All right. Yes. All right. And then we have 11 So that's one.

out what Mr. Horowitz's views are on these.

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terms of objections, Mr. Horowitz, to 1 through 5? MR. HOROWITZ: THE COURT: Yes.

Go ahead. Starting with Number 1, I believe

MR. HOROWITZ:

the rule on reports is the same as the rule on documents relied on by experts; that is, they're not evidence themselves. I mean, they're replete with hearsay, but, you

know, to the extent that -THE COURT: I always admit the expert reports, so

if that's going to be the basis for the objection -MR. HOROWITZ: THE COURT: Okay.

-- it's going to be overruled. Okay.

MR. HOROWITZ: THE COURT:

Anything else about 1 through 5? Yes. Number 2 is the MMPI, and I

MR. HOROWITZ:

believe that should be treated much like the documents relied on by experts, not as evidence itself for the truth of the matter. THE COURT: whom, Mr. Bryant? So this was something relied upon by

Dr. Mills? Correct, Your Honor. All right. So are you willing to

MR. BRYANT: THE COURT:

accept that limitation that Mr. Horowitz just mentioned, which is similar to the one we just -MR. BRYANT: As long as it's applied to both

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sides for expert documents, yes. THE COURT: All right. So the answer is, yes,

you're willing to accept that limitation. MR. BRYANT: THE COURT: Yes, Your Honor. Okay. Is that true also with respect

to the personality assessment inventory? MR. HOROWITZ: THE COURT: It is. Anything else on 1

All right.

through 5, Mr. Horowitz? MR. HOROWITZ: Number 5. Your Honor asked us to

do a brief memorandum of law.

At the pretrial conference,

you asked us to do -- each party to do a brief memorandum of law on why Dr. Stephenson's opinions have not been rendered moot. You may recall, she's the expert on the subject of

miscarriages. THE COURT: I think you want to bring that

microphone a little closer to you, Mr. Horowitz. MR. HOROWITZ: THE COURT: You had asked us to do a -I think this is

This one, too.

actually the one that I can hear. MR. HOROWITZ: THE COURT: This one? One is helping the reporter.

Yes.

The other one is helping me. MR. HOROWITZ: I understand. You had asked both

parties to do pretrial memoranda on the subject of why Dr.

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Stephenson's opinions and report have not been rendered moot, but by virtue of the fact that we do not intend to put evidence on that Lavetta Elk's miscarriages were proximately caused by the assault. Given that we do not intend to put

that evidence on, her collateral impeachment on the issue, so to speak, is improper collateral impeachment, is not evidence. It's not relevant. She does not opine that Lavetta Elk suffered from her miscarriage. She never -- she's an OB/GYN. She doesn't

conclude that certain -- that these were stressors on her, that they caused psychological harm. She merely takes issue

with the amount of miscarriages, the dates of the miscarriages, and that's collateral impeachment. THE COURT: have the memorandum? MR. HOROWITZ: I do. I didn't know if you wanted All right. So 5 -- and you said you

us to deal with it at the end of -THE COURT: Well, I think that, recognizing, Mr.

Bryant, that you're going to disagree with the characterization, this is the report on miscarriages. you agree to that extent? MR. BRYANT: THE COURT: MR. BRYANT: I do, Your Honor. All right. And -We Do

I can probably cut this off.

don't plan on putting this into evidence or having her

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testify, as long as the trial plays out without any claim of stress causing the miscarriages. as Mr. Horowitz has offered -THE COURT: Well, let's do this then. We're If that's how it plays out

going to just hold 5, and if the issue comes up, it comes up, and if it doesn't come up, well, then we don't have to deal with it. MR. HOROWITZ: Sure. And if it does come up, I'd

like an opportunity to provide you with our memo. THE COURT: And I think that makes perfect sense,

Mr. Horowitz, and I'll expect the same from Mr. Bryant if it comes up. All right. So 1 through 4, with the caveats

we've indicated. So the next ones I'm going to ask you about then, Mr. Horowitz, are 6B and 6C. MR. HOROWITZ: use the numbers. 6 -- well it's almost easier to

Pages 781 through 1090 are these prenatal

care records, miscarriage records, and to me, it's one and the same issue as what we were just discussing with Dr. Stephenson. She didn't go there for counseling. There's no

references to treatment for injuries related to the assault, simply prenatal and miscarriage type records. THE COURT: wait a minute. with 6B? What were the numbers of those? So,

You skipped then to 6C.

What's the problem

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MR. HOROWITZ: THE COURT: 6C.

No.

781 to 1090 is part of --

So what's the problem with 6B? I have 6B as including -- it's 454

MR. HOROWITZ:

THE COURT:

497 is what I have in this index. Well, they're duplicative of

MR. HOROWITZ:

something we already have listed, but to that extent, I have no objection. THE COURT: They're the same pages of something

you already have listed? MR. HOROWITZ: THE COURT: Yes.

Are you sure that they're the same

MR. BRYANT:

I think there's a typo on our I think

exhibit list, the main exhibit list that we filed. that's what Mr. Horowitz is -MR. HOROWITZ: should 6A be? MR. BRYANT: MR. HOROWITZ: MR. BRYANT: MR. HOROWITZ: Well, again -- okay. 6A is JX-2. Okay. 6B is DEF 454 to 497. Okay. Okay. What's 6A then?

What

That might clear it up.

6B, prenatal care records, treatment

during her pregnancy, and we don't intend to raise those issues. We don't find them relevant.

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THE COURT: MR. BRYANT:

All right.

Mr. Bryant?

The miscarriages, to the effect that

they have an impact on her psychological -- sort of the psychological harm that she discusses -- and we talked about this during the pretrial conference -- certainly is relevant to that. Now, the issue of -THE COURT: In other words, the allegation being

that some mental distress that she may be attributing to the assault instead would be attributed to the -MR. BRYANT: THE COURT: MR. BRYANT: THE COURT: Correct, Your Honor. All right. And these, of course -What we're going to do on 6B and 6C

is we're going to hold off on them, so we're not going to admit them at this point, and I'm going to wait for Mr. Bryant to introduce them at the appropriate stage of the proceeding. We'll see what happens at that point in terms

of establishing relevancy. All right. Then we have these rebuttal exhibits, Anything with that list,

9, and then we go 9A through 9H. Mr. Horowitz? MR. HOROWITZ:

I mean, they're depositions of To the extent that

some witnesses and non-witnesses.

they're non-witnesses, I don't see how they could be used. THE COURT: I'm not even sure how they come in as

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witnesses. MR. HOROWITZ: THE COURT: Yes. I was going to say --

I mean, if you're going to use these

for impeachment purposes, there's a process for that, but bringing in the entire depositions seem to be inappropriate. MR. BRYANT: It's not our intent -- we were just

trying to put everyone on notice that we may use those for impeachment purposes, Your Honor. THE COURT: MR. BRYANT: deposition. MR. HOROWITZ: THE COURT: they would be hearsay. They're not admitted. All right. That's why they're there. Well, then --

We're not going to admit the whole

Well, I can't admit them, because All right. So they're not for use

for impeachment purposes, so when you get to the appropriate spot and you're going to use them to impeach somebody, then you can admit them using the appropriate process, and they're going to come in in that way, but not the entire depositions. All right. So 9 through 9H -- okay -- are not

going to be admitted. Let's go to 11, then, through 20, Mr. Horowitz. MR. HOROWITZ: 11, 11 is a Bureau of Indian

Affairs incident report, which, among other things, contains a reflection on the decision whether to prosecute criminally. The decision whether or not to prosecute

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criminally is irrelevant, and to that extent, should not be admitted. THE COURT: that are relevant? MR. HOROWITZ: are also double hearsay. I was going to continue that there Although the title of the document Are there portions of that document

is, Interview of Lavetta Kathy Elk, they're actually summaries of interviews and therefore hearsay. THE COURT: perforce? Wouldn't they be business records

I mean, they have to be. MR. HOROWITZ: MR. BRYANT: Okay. Your Honor, these are on Plaintiff's The

exhibit list as well, 51, all but one of these pages. page about -THE COURT:

The other thing, I thought -- you

know, I'm not really happy about the organization of these binders. I mean, for one thing, I told you I didn't want,

you know, to have two things in the same binders, and that looks to be the case, because we've got pages overlapping of exhibits here. right. I told you specifically not to do that. All

So that's one thing. Two, by the time we get done with the ones that

are withdrawn and everything else, we're going to end up with Swiss cheese. You should anticipate that, not during

trial here, but you're going to have refile a new set of

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binders with the Court that includes all the other stuff stripped out, and basically just the exhibits that are admitted. That's going to be something I'll make due after

the close of trial, because a lot of the things -There's no reason I should have in a binder up here a withdrawn exhibit. If you're withdrawing it in the If you knew you

face of an objection, that's one thing.

were going to withdraw it before you even had an objection, then it shouldn't have been here to begin with, because it just basically makes things a little bit more cumbersome than they need to be. All right. duplicate or not? MR. HOROWITZ: is a duplicate. THE COURT: Portions of it are. Yes. I don't believe the entire exhibit So 11, you're telling me now, is a

MR. HOROWITZ: THE COURT:

For now, we'll just let it sit. Okay.

MR. HOROWITZ: THE COURT:

I do not want -- because what's going

to happen -- the reason why I don't want duplicate exhibits, one of you will cite to that exhibit one place, one way; another of you will cite to the exhibit someplace else a different way, and then we're going to have to figure out that you're actually talking about the exact same page. All

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right.

So I don't -- that's why we don't want duplicates of

the same documents. MR. BRYANT: and was declined. THE COURT: Horowitz? MR. HOROWITZ: The only one we have -- well, the 14 is -What's the All right. 12 through 20, Mr. I proposed that be a joint exhibit

first one we have an objection to is 14. THE COURT:

They're admissions.

nature of the objection? MR. HOROWITZ:

Relevancy objection? Yes. Let me see. Just that a lot

of these documents which accompanied the response to the discovery requests are -- they're duplicative. THE COURT: All right. So attached to these

interrogatories are -- oh, this is document production. Correct? MR. HOROWITZ: Yes. It's a document production,

and to the extent that they've been admitted, I have no objection. To the extent that they have not been I don't think it

admitted -- you know what I'm saying?

should be admitted, just because they attached it to the discovery response -- it was attached to the discovery response. THE COURT: these documents? Mr. Horowitz, what are you doing with

Evidentiary-wise, what are you doing with

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these documents? MR. BRYANT: Do you mean Mr. Bryant? Are you

talking to me, Your Honor? THE COURT: trying to say you. Yes. I'm sorry. Mr. Bryant, I'm

I'm sorry.

I'm looking at you and

saying, Mr. Horowitz. MR. BRYANT:

That's probably why you're confused. Well, some of these documents are

medical records that we talked about that we may need to use, and -THE COURT: Are they the same or -- see, one of

the problems I'm going to have here -- so let's say you use a medical record that's in the record twice to try to impeach somebody. Okay? And that I have to figure out,

whether there's any difference at all between the one that's in the record that you use in one spot versus the one that you're using in the record someplace else. duplicates or not? MR. BRYANT: Your Honor, but -THE COURT: All right. You're going to come back I think they are in large measure, And so are these

to me and tell me which pages of 14 that you -MR. BRYANT: Okay. Fair enough, Your Honor. I think it's duplicates. Mr. Horowitz, what else

We'll withdraw that Exhibit 14. THE COURT:

All right.

do you have in terms of 15 through 20?

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MR. HOROWITZ:

Just 19 and 20, to the extent that

the expert relied on them only, rather than the truth of the matter asserted. THE COURT: All right. Well, that would be true What is that

It looks like 20 is the report itself.

one, Mr. Bryant? MR. BRYANT: Your Honor, in DX-20 I should

That is the MMPI, but the one that Plaintiff's There's an MMPI that Dr. Mills did and an MMPI I didn't receive that one until That's

expert did.

that Dr. Manlove did.

Thursday night before I flew out on Friday morning.

why it is not identified in the covers of your binders, Your Honor, DX-20. THE COURT: Is this something that your expert

relied upon then or not? MR. BRYANT: It is -- it's something his expert

relied upon, and I'm going to use it for -- and ours as well, yes. THE COURT: MR. BRYANT: THE COURT: They did rely upon it. Yes. He is relying on it as well. So if we use this notion

All right.

of just -- the notion that it's here, but it will only have evidentiary value to the extent it was relied upon by an expert witness. Horowitz? So does that cover 19 and 20 then, Mr.

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MR. HOROWITZ: THE COURT: All right.

Yes.

So let's go back and see what we have So if I'm reading this correctly, we We have an objection to 5,

have 1 through 4 admitted now.

and any of these that are objected to, Mr. Bryant, it's going to be your job at the appropriate time to try to move that exhibit into evidence. there. MR. BRYANT: THE COURT: Yes, Your Honor. All right. So 1 through 4, and then Don't forget that they're

it looks like the next exhibit that we have admitted now is 12 and 13, and then 15 through 20. Horowitz? MR. HOROWITZ: THE COURT: Yes. So 1 through 4, 12 Any questions about Is that correct, Mr.

All right.

through 13, 15 through 20 for now.

those being the ones admitted, Mr. Bryant? MR. BRYANT: THE COURT: No, Your Honor. All right. So then, just for

official purposes then for the reporter, I'm admitting 1 through 4, admitting 12 through 13, and 15 through 20 inclusive, and none of those -- those are all numerical exhibits with no letters. numbers. (The documents referred to, So those are just the basic

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having been previously marked for identification as Defendant's Exhibits 1 through 4, 12 and 13, and 15 through 20, were received in evidence.) All right. And that means that the

ones that could come in at a later point here that have been withdrawn would be 5, 6B, 6C, any of the deposition testimony represented by the 9A through 9H series, the -and I think that's it. MR. BRYANT: THE COURT: Am I right, Mr. Bryant? Yes, Your Honor. Okay. Any questions about that, Mr.

No questions.

Any other questions about Defendant's

No, Your Honor. All right. Then I think we're done I'm correct

I've received your stipulations.

that Joint exhibits go up to 4. MR. HOROWITZ: THE COURT: Yes.

Is that correct?

All right.

So I'm going to then --

I'm then going to file the joint stipulation as Joint Exhibit 5, so for reference purposes, that's going to be Joint Exhibit 5.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Mr. Horowitz? MR. HOROWITZ: THE COURT: MR. BRYANT: THE COURT: few other things.

(The document referred to was marked for identification as Joint Exhibit 5 and received in evidence.) Any other questions about exhibits?

No, Judge.

Mr. Bryant? No, Your Honor. All right then. Let's talk about a

We're going to start with opening Following that, then

statements of about 20 minutes max.

we'll start with Plaintiff's case, Mr. Horowitz, with you calling witnesses. In terms of breaks, if you need one, you just need to let me know. periodically. You know, I try to take one

I mean, lunch hour and how much time we have

is going to be somewhat dependent upon how fast we're going. I want to try to make as efficient of time as we can, and so in particular, you know, if we're in a situation here where, you know, we have a witness who's a relatively short witness, we can take them up today, for example, or tomorrow, and not carry that person over to a second day, we're going to try to do that, so just anticipate I'm going to find out what the rules are in the courthouse in terms of

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departure time and that we're going to try to make as effective use of our time as possible on a day-by-day basis. The marshals reported to me that they allowed you to bring in cell phones, but it turns out that that, in fact, is against the policies of the courthouse, so I'm going to ask that when you go out for your lunch break, if you can, that you're going to put your phone someplace else before you come back in. If you come back in with them

after lunch, they're going to probably take them, and they're going to hold them probably at the United States Attorney's office. So I'm going to tell them that, you

know, coming back in from lunch, that they can apply the normal protocol that they have here in this courthouse. Any logistical questions we haven't talked about yet? Mr. Bryant? MR. BRYANT: exclusion of witnesses. Your Honor, we talked about We're not sure if there are some in

the courtroom at the moment or not. THE COURT: Yes. We'll deal with that before we Any other

get to opening argument, opening statements. logistical questions, Mr. Bryant? MR. BRYANT: THE COURT:

Not from the Government, Your Honor. Any questions? No. Just with regard to a couple

MR. HOROWITZ:

of witnesses that have been withdrawn, I notified Mr.

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Bryant.

Do you want to know who they are? THE COURT: That would be helpful to me, so if

you've withdrawn some, then you might as well let me know. MR. HOROWITZ: not be calling Lloyd Elk. THE COURT: Okay. We will not be calling Cecilia Sure. Let's see here. We will

MR. HOROWITZ: Fire Thunder. THE COURT:

What was the last -- the first name? Cecilia Fire Thunder. Cecilia is

MR. HOROWITZ: the first name. THE COURT: call. Correct? MR. HOROWITZ: one.

All right.

That was on your may-

Correct.

And there was another

Shane Montgomery is also on the may-call. MR. BRYANT: I think, Your Honor, I was also

informed Carol Ann Black Elk Weston. MR. HOROWITZ: MR. BRYANT: MR. HOROWITZ: Yes. Carol Ann --

And Emerson Elk as well. Correct. Yes. Those are a few

may-calls that we're not going to be calling. THE COURT: All right. In terms of your will-

calls, I mean, I did indicate that you needed to let the Government know or actually each other know about that ahead of time, so is that going to cause any problems with the

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will-calls, Mr. Bryant? MR. BRYANT: THE COURT: No problems. All right. So at this point, Mr.

Horowitz, you intend to call Ms. Elk obviously and then Ms. Randall, Ms. Hawk, Ms. Elk, Jerilyn Elk, and Leah White Bear Claw. MR. HOROWITZ: THE COURT: Yes. On that point --

Do you know who you're calling yet on

this may-call list or not? MR. HOROWITZ: them. Yes. Anyone unless I've named

I don't have it in front of me, but unless I've told

you I wasn't calling them. THE COURT: They're coming. Yes. With one exception. I'm

MR. HOROWITZ:

waiting on confirmation on Jackie Randall, that she's going to be appearing. THE COURT: have your experts. MR. HOROWITZ: THE COURT: Bryant? MR. BRYANT: THE COURT: No, Your Honor. Okay. All right. Then -- so Correct. All right. And then, of course, you

Is your list modified at all, Mr.

basically then the way that we're going to deal with the miscarriage issue is we're going to wait and see how

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evidence develops.

If you're going to bring it in then

to -- for purposes of attempting to essentially establish that some of the emotional distress, other types of potential injuries that are associated with the assault instead relate to that, then I'm going to expect you to tie it that way, so that witness had better be able to sort of tie it to something that's going to provide, for example, a temporal linking, because it's not going to make sense to be talking about the impact of a miscarriage if the emotional distress that we're talking about occurred, you know, at the time of the assault and shortly thereafter. All right. So you're going to have to be

prepared to do that, because if all of a sudden temporally we have a situation where the damage period we're talking about is here, and the miscarriages are happening at some later point in time, then I think you're going to have to be able to explain to me how it's relevant. MR. BRYANT: THE COURT: prepared to do so. MR. BRYANT: And if I can just do a proffer, Yes, Your Honor. All right. So that witness better be

Plaintiff has claimed sort of the emotional distress from the time of the assault until present day, so it would fall within certainly that time period. THE COURT: And I assume that you've also looked

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at issues involving how that would impact, for example -- I mean, one of the things I still need from you and you should anticipate having to do this in your post-trial briefs, is I still don't feel like I have a good sort of analysis of what type of legal framework we were functioning under here in terms of the establishment of damages. I mean, at points

we've talked about tort regimes, and at other points we've talked about not necessarily operating in those regimes. And so I think we're going to need to know that, because, for example, I'm sure that there are rules in tort regimes that impact questions like this, so if somebody is subject to emotional distress, for example, as a result of a tort, and then something else happens in their life that also causes emotional distress, I suspect that the tort law figured out how to deal with that, so that -But I'm not sure in this context whether those tort principles necessarily apply here or not, so it just seems to me that you need to continue to sort of be thinking in terms of not so much during the course of the trial, but in your post-trial briefing, that you're going to really have to tie the factual evidence here legally back to the damages questions that may be associated with the Treaty here, because it's not obvious to me that we just default to tort law. I mean, there may be reasons for that, and there

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may be reasons not.

That's what I want you to explore in All right. So -- but for

terms of your post-trial briefs.

purposes of evidence, I think that the main thing I'm concerned about is that there be a direct tie there, so that -- I'm not going to allow all kinds of testimony about the miscarriages if, in fact, the only issue that's going to come in here is the fact that there might be some alternative basis for emotional distress, and that's where the testimony is going to have to be focused upon. So we'll see what happens when we get to that point of the trial. Any other questions about preliminary

things that we need to discuss that we haven't resolved? Mr. Horowitz? MR. HOROWITZ: THE COURT: MR. BRYANT: THE COURT: No, Your Honor.

Mr. Bryant? No, Your Honor. Okay. Let's take a short recess,

just until eleven o'clock, so that's just six, seven minutes. At that point, we'll start with Mr. Horowitz's

opening statement. (Whereupon, a short recess was taken.) THE COURT: All right. So at this point, we're Here's what I'm

going to start with opening statements.

going to need, you, Mr. Bryant, and you, Mr. Horowitz, to -I just want to make sure there's nobody in the courtroom who

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is going to be excluded under the rule. that starts now, that prohibition.

For 615 purposes,

I've been informed that there are waiting areas for each of you that you can use if witnesses come in and you're looking for a place for them to stay while they're waiting to be called. And the only other thing I'll remind

you about Rule 615 is that the nature of that rule also means that once you call a witness to the stand if we take a break, the way I interpret Rule 615 is that you cannot work with that witness or talk to that witness or counsel that witness once they've taken the stand. So, for example, if we call somebody before lunch and then we take a lunch break, you can't meet with the witness during the lunch break, you know, and try to go over something that maybe, for example, they didn't answer the way that you liked and try to set them up for providing a better answer, say, post-lunch. And so I view that sort of

as just part and parcel of that rule being invoked, because you have information in terms of what's going on in the courtroom, and it's impossible at that point for you to be able to separate out that which you've heard and that which you didn't hear for purposes of figuring out how to talk to that witness. Understood? Yes. Okay. Anything else that

MR. HOROWITZ: THE COURT:

All right.

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we need to take up before we move to Mr. Horowitz? Bryant? MR. BRYANT: THE COURT: No, Your Honor.

Mr.

Mr. Horowitz, if I could go ahead and

have you go to the podium, please. MR. HOROWITZ: THE COURT: Am I correct it's this microphone? Anytime you're ready, sir.

Yes.

OPENING STATEMENT ON BEHALF OF THE PLAINTIFF MR. HOROWITZ: Your Honor, the evidence you will A

hear in this case pertains to an undisputed event.

military recruiter named Sergeant Joseph Kopf sexually assaulted a 19-year-old girl named Lavetta Elk. Lavetta

Elk, you will hear, was raised on the Pine Ridge Indian Reservation and is a full-blood member of the Oglala Sioux Tribe. And you'll hear that as a child on the reservation, she was ambitious and successful. You will

hear that she performed well in school, was the captain of sports teams, and was a leader in community service projects on the reservation. Throughout her childhood, Lavetta had a

dream, a dream to join the military, like her grandfathers and her uncles, and her brother before her. that she wanted to hear the Army like them. And her family taught her, you'll hear, to believe in military values and to respect and hold its You'll hear

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officers in the highest regard, and there could be no greater way for Lavetta to serve her country than to join the military. And you'll hear that for Lavetta, this dream

was particularly special, because she wanted to be the first woman in her family to join the Army. hear, made her mom and dad very proud. And in 2003, Lavetta decided to leave behind a full-tuition college scholarship to pursue this dream. life, you'll hear, wasn't always easy for Lavetta on the reservation. events. In high school, she had some unfortunate Now, And this, you'll

She had a sponsor who died, and that made her sad.

She had two grandparents who died later, and she had a friend who committed suicide. But life happens for Lavetta,

just like it did for many other young people. But you'll hear that Lavetta overcame each of these obstacles. The evidence will show that she, when she

graduated high school, received, as I said, multiple scholarship offers to attend college on a full tuition scholarship. And Lavetta will testify that she made the

Army first aware of her interest in joining the military when she was in the eleventh grade at age 16, and while she was in the eleventh grade, the Army assigned her a recruiter named Sergeant Joseph Kopf. Sergeant Kopf started recruiting Lavetta at the young age of 16 and would talk to Lavetta about her military

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ambition, her dreams, and what she needed to do to make that happen. He would meet with her at her high school and at

her home, and as he was recruiting Lavetta, you'll hear that he began what is known as the grooming process, gaining her trust and confidence and that of her family as well, and showing an interest in her as a person. And by gaining the trust of her family members, too, he was grooming her for what was to occur on January 7, 2003. You will hear from Lavetta that on that date,

Sergeant Kopf arrived at the home of Lavetta's parents in Wounded Knee, South Dakota, and he told her and her dad that he needed to take her to Sioux Falls to resubmit to a height and weight evaluation. trusted him. Lavetta will testify that she

She went in her home, and she packed an

overnight bag, and they headed into his military vehicle. And then she'll testify that he told her he needed to make a recruiting stop, but instead of taking there, he went on some back roads and in a different direction, past all the housing developments on the reservation, into an even more remote, isolated part of the reservation where he could not be seen and Lavetta could not be heard. L