Home

PAGES 281 to 295

 


PAGE 281

 

Q. Are you lying when you said that?

A. No.

Q. How can you tell us what Arlo said if you didn't have

any conversations with him?

A. I didn't have a conversation with Arlo, I only heard

what he said to John Trudell.

Q. Now, let's talk about page 67, the question you were

just asked and the full answer. Question, did he have a

conversation with Anna Mae while he was sitting in the car

with her? Answer, he said that Anna Mae told him, I mean she

begged him and pleaded with him to let her go, to let her out,

let her go, and he told her he couldn't do that. And she said

they are in there deciding my fate, and your, they are

probably going to make you pull the trigger. And he said, you

know, that's not true, that's not going to happened and you

are just being paranoid and stuff like that. And she told him

no, I am telling you the truth, and you should just let me out

and let me go. Is that your full answer that you gave to that

question?

A. Yes.

Q. Did you get the impression that Arlo knew that she was

going to die?

A. Arlo didn't know she was going to die.

Q. Are you sure of that?

A. I am sure.

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877

 

PAGE 282


MR. McMAHON: Your Honor, I object.

THE COURT: Overruled -- what was the basis for the
objection?

MR. McMAHON: Argumentative, calling for pure
speculation.

THE COURT: Sustained, answer is stricken. Anything
further.

MR. RENSCH: Nothing.

THE COURT: Anything further.

MR. McMAHON: Nothing, Your Honor.

THE COURT: Well it is five to 5:00, so we are not

going to call another witness at this time. Remember what I

told you before, don't let anybody talk to you about the case.

If anybody does try to talk to you about the case, you let me

know about it. You can leave your notes back here, nobody is

going to look at them tonight. Don't try to do any separate

independent research, I don't want you to look at the

newspaper or the news. I don't want you do hear somebody

else's slant on this in the event there is anything in the

newspaper about it, because you are the ones that are going to

make the decision based upon the facts as you see them. Not

what somebody reports is their view of what is going on, if in

fact somebody does. So don't. Skip the newspaper, and the

news, and don't talk to each other about the case either until

we are completely done with the case and you are back in the

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877

 

PAGE 283


jury room deliberating. So we will be in recess then until

9:00 tomorrow morning. Thank you, and good night. Please

stand for the jury.

(Jury Leaves).

THE COURT: I wanted to inquire as to when the

government thinks they will finish their case.

MR. McMAHON: I think tomorrow. Your Honor. Mid

afternoon.

THE COURT: That was my guess. Obviously you know

more about your witnesses than I do. And if that comes to

pass, then when does the defense think they will finish their

evidence?

MR. RENSCH: All my witnesses are subpoenaed for

Friday morning at 8:00, and I suspect you would be looking at

no more than four hours.

MR. McMAHON: Your Honor, I am not exactly sure

which witnesses he is talking about. If there's other ones

than are on the list that he gave us, but most of those

witnesses are around here, so there wouldn't be any reason we

couldn't start right away.

MR. RENSCH: I have subpoenaed them for Friday

morning at 8:00. If they are around here I am all for it.

THE COURT: See if they can be available so we can

have witnesses on tap when the government finishes so we can

go on, because it would work out well time wise in terms of

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877

 

PAGE 284


completing the evidence then. And you would be able to sounds

to me like maybe settle instructions and argue on Friday.

Because the instructions are pretty simple. So looking down

the road then just in terms of time planning for you, how much

time do you want for argument? I will listen to what you want

and then I will tell you what you get.

MR. McMAHON: I guess it is a little hard to guess

at this time because if haven't heard what is coming from the

other side, Your Honor, but I can't imagine I would want more

than an hour.

THE COURT: How about the defense.

MR. RENSCH: If they want an hour, I want an hour,

but I think we can argue it in thirty minutes.

THE COURT: Well, when you are done is up to you,

but I will give each side an hour. I have a no sand bag rule

which applies, of course, to the prosecution, and that is that

you can't argue any longer in rebuttal than you argued

initially. So for example, if there was 20 minutes that the

prosecution used in opening arguments, then you only get

twenty minutes in rebuttal. On the other hand, if the

prosecution used thirty minutes in opening arguments, they get

thirty for rebuttal. Obviously if they use more than that,

they only get what time is left out of an hour. So the

prosecution is familiar with that because they have tried

other cases in front of me, and Mr. Rensch, you see what I am

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877

 

PAGE 285


talking about.

MR. RENSCH: Is there any way I can prevail upon the

Court to change its mind about that rule? Let me just bring

something up. Under the rules of debate, for example, if you

have a statement and a response and then a rebuttal, the

rebuttal usually isn't allowed to be more than 33 percent of

the entire time allotted. If I get in to a situation where

they get to argue a half an hour, I get to argue for what will

probably be a half hour, and they get to argue for a half hour

again, I think it puts me at a disadvantage. I would request

they be limited to the extent they can argue for up to thirty

or forty minutes and have maybe twenty minutes on rebuttal, or

maybe a little less than that. But if we are in the situation

where the rebuttal can be as long as the initial statement, I

don't have any authority for it, but it strikes me as working

an inequity.

THE COURT: Well, but the thing you hypothecated is

exactly what they are held to. For example if they argue

forty, they only get twenty in rebuttal. If they argue twenty

they get twenty. I don't quite understand.

MR. RENSCH: I am worried about them arguing thirty

and getting thirty.

THE COURT: If that's what they argue, that's what

they get. You won't find any authority to the contrary.

Matter of fact, a lot of Judges don't limit the rebuttal. We

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #30 5A
Sioux Falls, South Dakota 57104 (605) 330-4877

 

PAGE 286


are in recess.

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877


 

PAGE 287

 

INDEX TO WITNESS

ROGER AMIOTTE

DIRECT EXAMINATION BY MR. McMAHON .............. 23
CROSS EXAMINATION BY MR. RENSCH ................ 29

NATE MERRICK

DIRECT EXAMINATION BY MR. MANDEL ............... 30
CROSS EXAMINATION BY MR. RENSCH ................ 42
REDIRECT EXAMINATION BY MR. MANDEL ............. 47

JAMES GLADE

DIRECT EXAMINATION BY MR. MANDEL ............... 49

DON DEALING

DIRECT EXAMINATION BY MR. MANDEL ............... 54
CROSS EXAMINATION BY MR. RENSCH ................ 59

JOHN MUNIS

DIRECT EXAMINATION BY MR. MANDEL ............... 62
CROSS EXAMINATION BY MR. RENSCH ................ 65
REDIRECT EXAMINATION BY MR. MANDEL ............. 66
RECROSS EXAMINATION BY MR. RENSCH .............. 67

DR. GARRY PETERSON

DIRECT EXAMINATION BY MR. McMAHON .............. 68
CROSS EXAMINATION BY MR. RENSCH ................ 79

WILLIAM WOOD

DIRECT EXAMINATION BY MR. MANDEL ............... 80
CROSS EXAMINATION BY MR. RENSCH ................ 89

EVAN HODGE

DIRECT EXAMINATION BY MR. MANDEL ............... 96
CROSS EXAMINATION BY MR. RENSCH ............... 100

KIMBERLY EDWARDS
DIRECT EXAMINATION BY MR. MANDEL .............. 101

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877


 

PAGE 288

 

DARLENE NICHOLS

DIRECT EXAMINATION BY MR. McMAHON ............. 112
REDIRECT EXAMINATION BY MR. McMAHON ........... 178
RECROSS EXAMINATION BY MR. RENSCH ............. 180

MATHALENE WHITE BEAR

DIRECT EXAMINATION BY MR. McMAHON ............. 181
CROSS EXAMINATION BY MR. RENSCH ............... 189

BOB RITER
DIRECT EXAMINATION BY MR. McMAHON ............. 190

RAYMOND HANDBOY

DIRECT EXAMINATION BY MR. MANDEL .............. 199
REDIRECT EXAMINATION BY MR. MANDEL ............ 206

JOAN DECKER
DIRECT EXAMINATION BY MR. MANDEL .............. 207

ANGIE JANIS

DIRECT EXAMINATION BY MR. MANDEL .............. 209
CROSS EXAMINATION BY MR. RENSCH ............... 229
REDIRECT EXAMINATION BY MR. MANDEL ............ 234

TROY LYNN YELLOW WOOD

DIRECT EXAMINATION BY MR. McMAHON ............. 235
CROSS EXAMINATION BY MR. RENSCH ............... 267
REDIRECT EXAMINATION BY MR. McMAHON ........... 277
RECROSS EXAMINATION BY MR. RENSCH ............. 281

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877

 


PAGE 289

 

INDEX TO PLAINTIFF EXHIBITS

4 Marked ............................. 24
4 Offered ....................... 24
4 Received ...................... 24

5 Marked ............................. 32
5 Offered ....................... 35
5 Received ...................... 35

6 Marked ............................. 27
6 Offered ....................... 28
6 Received ...................... 28

8 Marked ............................. 25
8 Offered ....................... 27
8 Received ...................... 27

12 Marked ........................... 237
12 Offered ..................... 237
12 Received .................... 237

14 Marked ........................... 118
14 Offered ..................... 119
14 Received .................... 119

23 Marked ............................ 33
23 Offered ...................... 35
23 Received ..................... 35

27 Marked ........................... 147
27 Offered ..................... 187
27 Received .................... 187

28 Marked ............................ 34

30 Marked ............................ 75
30 Offered ...................... 76
30 Received ..................... 76

31 Marked ............................ 73
31 Offered ...................... 74
31 Received ..................... 74

32 Marked ............................ 73
32 Offered ...................... 74
32 Received ..................... 74

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877

 


PAGE 290

 

33 Marked ............................ 84
33 Offered ...................... 85
33 Received ..................... 85

40 Marked ........................... 106
40 Offered ..................... 107
40 Received .................... 107

41 Marked ........................... 106
41 Offered ..................... 107
41 Received .................... 107

42 Marked ........................... 208
42 Offered ..................... 208
42 Received .................... 208


INDEX TO DEFENSE EXHIBITS

A - E Marked ......................... 45

A - E Offered ................... 46

A - E Received .................. 46

MISCELLANEOUS INDEX
Offer of Proof ...................... 155

JERRY J. MAY. RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877


 

PAGE 291

 

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
*******************
*
UNITED STATES OF AMERICA, Plaintiff, *
*
-vs- *

FRITZ ARLO LOOKING CLOUD, Defendant. *

CR. 03-50020
* JURY TRIAL
* VOLUME II
*

*
*******************

BEFORE: The Honorable Lawrence L. Piersol
Chief United States District Judge For the District of South Dakota
Sioux Falls, South Dakota

APPEARANCES:


Mr. James McMahon
Mr. Robert Mandel
United States Attorney Sioux Falls, South Dakota
Attorneys for the Plaintiff.


Mr. Timothy Rensch Attorney at Law Rapid City, South Dakota
Attorney for the Defendant.


PROCEEDINGS: The above-entitled matter came on for
hearing on the 3rd day of February, 2004 commencing at the hour of 9:00 a.m. in the courtroom of the Federal Building, Rapid City, South Dakota.

Proceedings recorded by mechanical stenography, transcript produced by computer.

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877


 

PAGE 292

 

(9:00, 2-5-04.)

THE COURT: Please be seated. Good morning. A

little more with regard to my continuing exposition on

hearsay. Counsel can be referred to an Eighth Circuit case

United States versus Amahia, A-M-A-H-I-A, 825 F.2d 177, 1987

Eighth Circuit case. There the Court in another criminal case

said under rule 801 (c) of the Federal Rules of Evidence an

out of court statement not offered to prove the truth of the

matter asserted is not hearsay under 801(c). The statement

not offered for the truth of the matter asserted is not

hearsay because reliability, thus truth, is not at issue.

Also in Goldstein Trial Techniques updated as of November,

2003, there is a further discussion at footnote 10 dealing

with the same thing. In only one instance, though, after

objection did the government then say that it was not offered

for the truth of the matter stated, although in previous

instances and in that instance I gave limiting instructions so

limiting it anyway. Alright, bring in the jury, please.

(Jury Enters).

THE COURT: Good morning. You may proceed.

MR. MANDEL: United States would call Denise

Maloney, Your Honor.

DENISE MALONEY PICTOU,

called as a witness, being first duly sworn, testified and

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877

 

 

PAGE 293


said as follows:

DIRECT EXAMINATION BY MR. MANDEL:

Q. State your name, please?

A. Denise Pictou.

Q. Where do you reside?

A. In Ontario, Canada.

Q. Were you related to the decedent in this case, Anna Mae

Pictou-Aquash?

A. Yes, she was my mother.

Q. You traveled down here for the trial?

A. I did.

Q. Did you come with anybody else?

A. Yes, I brought my sister, my father, and the chief of

our nation.

Q. Where did they come from?

A. Nova Scotia.

Q. I want to ask you, was there a time when you had the

opportunity to have a conversation with Arlo Looking Cloud

regarding this matter?

A. Yes, there was.

Q. Can you tell us when that happened and how it came

about?

A. In early April of 2002 I got a phone call from Paul

DeMain from, Paul DeMain, and he had told me that he had been

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877

 

 

PAGE 294


contacted by Richard Two Elk and that he was in contact with

Arlo, and that Arlo wanted to, that he needed to speak with

Anna Mae's daughter.

Q. That would be you and your sister Debbie?

A. That's right. At the time this was big for us, because

we basically hadn't talked to anybody. So I called her up and

made a decision to make a phone call and got Richard's phone

number from Paul DeMain, called him up and spoke with him

briefly. He said Arlo is here and wants to talk to you, and

they put him on, and he --

Q. Let me stop you for one moment. How does Richard Two

Elk figure in to all this?

A. I believe he is his brother, that's what we were told,

and I had trusted Paul DeMain in telling me that he was his

brother, and that's pretty much all I know about Mr. Two Elk.

Q. So you made the call to Richard Two Elk. Do you know

where he was located at the time?

A. I didn't know, no. I had the phone number, and I am not

familiar with American area codes, so I had no idea what state

he was in.

Q. Do you remember about what date this phone call took

place?

A. It was early April. Early April in the single digits

around the 3rd, 4th, 5th, somewhere in there.

Q. Of 2002?

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877

 

 

PAGE 295


A. 2002.

Q. So it was about two years ago?

A. That's right.

Q. And did you get an opportunity to speak to Arlo Looking

Cloud on that occasion?

A. Yes, we did. He got on the phone. He was fairly quiet.

Q. Who else was on the phone call?

A. My sister Debbie.

Q. What about Richard Two Elk?

A. Not that I was aware of, no. I heard him hand the phone

over, so I don't know.

Q. To your knowledge it was just the three of you on the

conversation?

A. That's correct.

Q. How did the conversation start out?

A. He was very quiet. We were all kind of quiet at first.

I don't think any of us knew what to say. My sister right

away asked him if we could record the conversation for our own

purposes, and he said no. So we totally respected that, that

was fine. We asked him if this was something that he wanted

to do. He said yes, and he was very emotional and said that

he felt bad that he hadn't done it a long time ago, and we at

the time were very emotional as well. We asked him to speak

from his heart, that we were grateful that he was talking to

us now, and that's what mattered to us, that we needed to hear

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls. South Dakota 57104 (605) 330-4877

Pages 296 ~ 310 >>