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PAGE 146


A. Dennis.

Q. What did he do?

A. He drove away.

Q. What happened after that?

A. He started shooting him, him and the officer were

shooting at each other as he was driving away.

Q. Did he get away?

A. Yes.

Q. Where was Mr. Peltier?

A. He initially was laying beside me on the ground.

Q. What did he do?

A. He started running for the fence, and the officer shot

him as he was going over the fence and he ran away.

Q. So did he get away too?

A. Yes.

Q. What happened to the rest of you?

A. We went to jail.

Q. That would have been you?

A. It was myself and Anna Mae, Kenny Loud Hawk and Russell

Red Earth, and my daughter.

Q. Who did you share a jail cell with?

A. Anna Mae.

Q. You had testified earlier that the two of you hadn't had

much contact. Did that last up until the time that you were

in that motor home together?

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A. Until the night I saw her at Loud Hawk's.

Q. Now you were in a cell together?

A. Yes.

Q. So when you were in the cell together did you have an

occasion to visit with each other?

A. Yes.

Q. What was Anna Mae's state of mind at that time?

A. She was upset. She was crying. She was afraid, but she

was, I knew what she was afraid of, because I knew she had

already been arguing with the cops up to that point, telling

them they should, while we were in the ditch they should put

me in the car because I was pregnant, I had a little girl, it

was cold outside. So she wasn't afraid of them, but yet she

was scared, and I knew that she was scared of Leonard and

Dennis at that point.

(Exhibit 27 marked For identification.)


Q. I would like you to look at that picture I just put in

front of you. Would you look at the number on the back and

tell me what the Exhibit No. is, please?

A. 27.

Q. What is that a picture of?

A. Anna Mae.

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Q. Is that what she looked like when you were arrested in


A. Yes.

Q. Do you know when she cut her hair?

A. No.

Q. How long were the two of you in jail together?

A. Probably a couple of weeks.

Q. Where were the two of you taken after you left jail?

A. They put us on a plane and they flew us back to Wichita

together, and the Marshals came and met us at the airport, and

they took me back to jail and they brought her to South


Q. Why did they take you back to jail?

A. Because I wasn't supposed to have left Kansas and I had

traveled back to Washington. So when I got arrested in

Washington they returned me back to Kansas.

Q. Do you know why Anna Mae was brought to South Dakota?

A. Because there was a bench warrant on her up here.

Q. Was that stemming from the September 5th arrest?

A. Yes.

Q. Did you ever see Anna Mae alive again?

A. No.

Q. When did you find out she was dead?

A. On February 24th.

Q. Would you like some water?

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A. Thank you.

Q. How do you remember it was February 24th?

A. Because Dennis called me.

Q. Dennis Banks?

A. Yes.

Q. How did you relate that call to the date of February


A. Because he was in San Francisco, I was in Portland,

Oregon. We had, in the house we lived was our office, and

when he called I was sitting at the desk and I was speaking to

him before he told me this, I looked at the calendar and it

was my nephew's birthday, and I was remembering it was my

nephew's birthday and I needed to call him, and Dennis told me

they had found Anna Mae.

Q. That's February 24, 1976?

A. Yes.

Q. You testified earlier that you and Mr. Banks were no

longer together?

A. Right.

Q. I don't remember if I asked you what year was it that

you separated?

A. April of 1989.

Q. How many children did you have together?

A. Four.

Q. At some point in time did you decide to cooperate with

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the law enforcement people in their investigation of Anna

Mae's death?

A. Yes.

Q. Why did you decide to do that?

A. Because I believed that from the day he called me I

started always believing that it was the American Indian

Movement that had something to do with it, because of the

conversations I had heard throughout the time before I got

arrested. And I came here that summer, and I was in the area

for four months and in that time I visited different people I

learned what happened to her.

Q. How did it come about that you got in contact with law

enforcement people about this?

A. We contacted Jim Graf and had a meeting with him in


Q. Was this your idea, or did the FBI contact you?

A. They didn't contact me, I called them.

Q. So you voluntarily came forward?

A. Yes.

Q. What types of things have you done besides tell what you

knew about what happened, what else have you done to help in

the investigation of this matter?

A. I have talked to several people that were involved in

Anna Mae's death.

Q. Did you talk to Troy Lynn Yellow Wood at any time?

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A. Yes.

Q. Did you record that conversation with the help of the


A. Yes.

Q. Did you have an occasion then to visit with the

defendant Arlo Looking Cloud and Troy Lynn Yellow Wood?

A. Yes.

Q. Was that a separate occasion?

A. Yes.

Q. Did you record that conversation with the help of the


A. Yes, I did.

MR. McMAHON: Your Honor, at this time I would like

to stop my questioning and recall her at a later time to go in

to that portion of it.

THE COURT: Very well. Do you wish to examine at

this time with regard to this testimony, or do you want to

reserve your examination until the testimony is completed?

MR. RENSCH: I would like to examine at this time if

I could, Your Honor, relative to what she has said thus far.

THE COURT: Very well.


Q. Ma'am, if I ask you a question that appears or seems to

be confusing, would you stop me so that we can understand each


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A. Yes, I will.

Q. How old are you?

A. Forty-eight.

Q. What type of education do you have?

A. I graduated high school. I went to school in

California, I got an Associate of Arts degree in Native

American studies, and went on to school at UC Davis in


Q. What degree did you get there?

A. I was in my third year there when Dennis and I moved

because he was fighting extradition, we left and moved to New


Q. What do you do for a living?

A. I am a casting director, I work on movies.

Q. How long have you been a casting director?

A. Since June of 1989.

Q. How many movies have you worked on?

A. Maybe thirteen or fourteen.

Q. What are some of the movies you have worked on?

A. Pardon.

Q. What are some of the movies you have worked on?

A. I did casting on Dances With Wolves, I have worked on

Last of The Mohicans, I have worked on several TNT

productions. I worked on Mohammed Ali movie, I did casting

for some Tony Hillerman movies.

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Q. In your job have you met movie stars?

A. Yeah.

Q. Who are some of the movie stars you have worked with?

A. Kevin Costner, I have met Gene Hackman, Daniel Jay

Lewis. Didn't always meet the actors when they came to the

movies, sometimes they didn't, just depended.

Q. In working with these movie sets and things of that

nature have you come to know the movie industry somewhat?

A. Yes.

Q. How so?

A. Well, I think I came to know it pretty well. It was

what I did.

Q. Did you ever come in to contact with writers in the

movie industry?

A. I know who the writers were, they didn't always come to


Q. You have met some writers because of your occupation in

the movie industry, haven't you?

A. I don't know that I met them. Sometimes, you know. Tony

Hillerman came to our movie location, he wrote the book that

the movie is based on. A screen play has been rewritten, I

didn't meet the people that wrote. He was there, I didn't

make a point of meeting him. I didn't make a point of meeting

the writer. They are not usually on location.

Q. So there is a person who writes the book that a movie is

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made out of?

A. Pretty much.

Q. Then there is another person who writes the screen

adaptation to it, is that how it works?

A. No, the person writes the book and then there is the

person who changes it in to a script.

Q. Have you met people who have changed books in to


A. No.

Q. Do you know who those people are because of your being

involved in the movie industry?

A. If I looked on my crew list I might know who they are,

but I don't. I work with the extras and the producer and the

director, so I don't normally work with the writer, that is

not my job.

Q. You also know from being involved in the movie industry

that there is a lot of money to be made if a movie is

successful, isn't that true?

A. If it is successful, yeah, I am sure.

Q. Millions and millions of dollars if it is successful,


A. Yeah.

Q. You worked on Dances With Wolves, isn't that true?

A. Right.

Q. Tens of millions of dollars if a movie is successful,

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isn't that true?

A. I heard it is true.

Q. How much do you make a year right now?

A. It depends.

MR. McMAHON: Objection to relevance.

THE COURT: Sustained.

MR. RENSCH: Like an opportunity to make an offer of

THE COURT: You can.

MR. RENSCH: Could we break now and do that, and I

could continue with this witness.

THE COURT: We are close enough to noon, we will do

that now. Remember what I told you before, don't talk to each

other about the case, don't do outside research, don't talk to

each other, don't make up your mind now, because you haven't

heard all the evidence yet. We will be in recess until 1:15.

Please stand for the jury, counsel to stay.

(Jury Leaves).

THE COURT: Out of the presence of the jury.

MR. RENSCH: May I ask some questions in the form of

an offer of proof, Your Honor?


MR. RENSCH: How much money do you make in a year,

Ma' am.

A. It depends on the movie and the budget of the movie, it

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Q. Let's talk about the year 2003, how much money did you

make in 2003?

A. I am only trying to remember which movie it was, I am


Q. Just the whole year, 2003, all the money that you made?

A. Probably not very much that year.

Q. Well, are we talking, can you give us a ballpark on an

amount ?

A. Okay, we are talking about last year.

Q. Yes.

A. Probably only about maybe $20,000.

Q. And in the five years prior to that time what is the

most you made in any one year?

A. Maybe thirty five.

Q. $35,000?

A. Maybe.

MR. RENSCH: Your Honor, at this point I would rely

on this as an offer of proof and request the opportunity to

inquire about it in front of the jury to establish a possible

bias in the testimony in light of the fact that there is a

great deal of money that can be made if one were to write a

book or write a screen play about this subject which has so

very much interest in our country, and from that standpoint it

could color her testimony. In support of that I would tell

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the Court that it is the theory of the defense that these

matters, well, should be brought in to question. And the

motivation for testifying has been opened by the government in

its direct examination by asking why did you come in and tell

the FBI these things, and from that standpoint her bias would

go into the theory of the defense, and we would request an

opportunity to use this information to secure my client's fair

trial rights, his right to confront and cross examine a

witness, and his due process rights.

THE COURT: Well, what does the government have to

say about that?

MR. McMAHON: Your Honor, he has laid no foundation

that she is going to make one nickel off of this. Anybody

that is sitting in the courtroom can write a book. It is

totally fictitious, and it is just a smoke screen, if you

will. He has made no connection whatsoever with her

employment and the fact that she decided to come forward and

tell what she knows about a murder case.

THE COURT: Alright.

THE WITNESS: Can I say something.

MR. McMAHON: No, unless the Judge wants you to.

THE COURT: You can if you want to. I am ready to

rule, but you can if you want to.

THE WITNESS: That I now need to change my career

and look for further different employment, because casting is

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not something that I would be able to do from this point on.

THE COURT: Why is that?

THE WITNESS: Because I have come forward with this


THE COURT: Alright, thank you. Well, first of all,

frankly, counsel for the defense, I don't think you knew what

the answers were going to be. Of course that is

understandable because you don't get the benefit of

depositions in a criminal case like you do in a civil case,

and so I think we had a little discovery that went on here as

to what she earned. I think you thought the figures would be

a lot bigger. So to argue that she is going to write a book,

well, casting doesn't have anything to do with writing, and it

hasn't been shown she has any ability to write a book. If she

were going to, she could have before this. So I don't think

that -- you know, you can certainly inquire in to her motive

in front of the jury for coming forward, but I think this one

is a wild goose chase. You can go in to motive, but I don't

think you have shown anything here. So your offer of proof is

received, but I don't think it has established anything.

Anything further?

MR. RENSCH: Not from me.

MR. McMAHON: Not from me, Your Honor.

THE COURT: We will be in recess until 1:15.

(Recess from 12:00 until 1:15).

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THE COURT: Please be seated. Since we have been

talking about hearsay a little bit, and so for the guidance of

counsel and for the record, as to the general talk or

knowledge at Farmington, New Mexico at the AIM convention,

that Anna Mae Aquash was being considered by the AIM members

there generally to be a fed or an informer, and Ms. Nichols

was in the middle of all that as she was with Mr. Banks, as

well as apparently active in her own right at that time. Now

that's not hearsay, although I have limited its use, but then

from what the government claims they are going to prove, the

specific things said to the deceased Anna Mae Aquash by

persons other than the defendant, those go to, as I see it,

the decedent's state of mind, and ultimately whether Anna Mae

Aquash voluntarily went from Denver to Rapid City, stayed in

Rapid City, then to Rosebud, then on to Pine Ridge where she

was murdered. And given that they were all riding in a little

Ford Pinto during all of that time, what she would have

manifested is relevant and material, but I am going to read

now from an October 9, 2003 Eighth Circuit Court of Appeals

opinion. United States versus Malik, M-A-L-I-K. It is 345

F.3rd 999, the case starts, and at page 1001 the Court said

Malik contends the statement of the informant relayed to the

jury through the testimony of the police officers were

hearsay, highly prejudicial and not relevant. "When the

out-of-court statement has relevance when we only consider the

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effect it had on those who heard or read it, not whether the

statement was true or not, but just its effect on those who

heard it, then the statement is not hearsay." That's G.

Michael Fenner, THE HEARSAY RULE 31, 2003, that book. See

also Federal Rules of Evidence 801. For example, an out of

court statement is not hearsay if it is offered, not for the

truth of the matter asserted, but instead to explain the

reasons for or propriety of a police investigation. So bring

in the jury, please.

MR. RENSCH: May I say something.


MR. RENSCH: I would like to indicate to the Court

that I am going to in cross examination delve in to some of

the areas I objected to, and the reason for that is I have to

delve in to those, and I would like the opportunity to do so

without waiving my objections to the previous evidentiary

objections on that.

THE COURT: Is that a statement, or a question?

MR. RENSCH: A little bit of both. I just want a

spot I can cite to to preserve in the record the reason I am

going to be asking certain questions that deal with the

matters I have objected to are because I have to deal with

those now, and I don't want to waive any appellate right.

THE COURT: Well, that's your choice. I mean there

is no objection before me, and what ever you do with your

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