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PAGES 461 to 476

 

 

PAGE 461

 

vehicle, correct?

A. That's correct.

Q. And that it is either Theda or John Boy says to him go

along, correct?

A. I believe he says that Theda said go with him.

Q. You believe he said Theda go with him?

A. Yes.

Q. Didn't he tell you at one point that John Boy said go

with him?

A. I think at one point he said John Boy said come along,

and one point I believe in the statement Theda said go with

him.

Q. In any event, he goes along and he never tells you that

he wants her to die, does he, sir?

A. He never told me that.

Q. And he never tells you that he is helping with her

murder, does he, sir?

A. That's correct.

Q. And he tells you that when she is shot this is a

surprise to him, isn't that correct, sir?

A. I can't remember him saying that unless it was on the

tape.

Q. He didn't know she was going to be shot, isn't that

true, sir?

A. He did say that.

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

 

PAGE 462


Q. And if you don't know something is going to happen and

it happens, that can be a surprise, can't it, sir?

MR. MANDEL: Objection, argumentative.

THE COURT: Overruled, it's cross examination.

A. Yes, it could be.

BY MR. RENSCH:

Q. And that when she was shot he took that gun and fired it

into the ground because he was afraid of what might happen?

A. That's what he said.

Q. And he emptied that gun in to the ground, that's what he

told you, sir?

A. That's correct.

Q. And he got back in that vehicle and they buried that

gun, true, sir?

A. That's what he said.

Q. And that when he went back to Denver and after they

spent the night, he went about his business and stayed away

from this John Boy Patton, that's what he told you, is that

correct, sir?

A. He said when they first got back there that he stayed at

John Boy's there I believe overnight. I remember in the

statement he said that there wasn't much discussion, John Boy

was making chokers, and then John Boy went to sleep and he was

visiting with Angie, I believe.

Q, And he got out of there and he stayed away from John

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

 

PAGE 463


Boy, that's what he told you, isn't that true?

A. That's correct.

Q. And that after that he didn't do anything with the

American Indian Movement, that's what he told you, isn't that

true, sir?

A. He said he stayed away from Theda, John Boy. I don't

remember him saying anything about the American Indian

Movement.

Q. Well, he stayed away from the people that were involved

in all of this, isn't that true?

A. That's correct.

Q. And when he spoke to you in July, he was speaking to you

willingly, wasn't he?

A. That's correct.

Q. And when he spoke, that's July of 1995. When he spoke

to you in 2003, he was speaking to you willingly, isn't that

true, sir?

A. That's correct.

Q. Incidentally, when you first approach somebody about

criminal activity, people often say they don't know what you

are talking about, don't they, sir?

MR. MANDEL: Objection, relevance.

THE COURT: Overruled.

A. Well, the first time he said he didn't know anything

about it when we talked to him the first time, and then the

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

 

PAGE 464


other two occasions he did cooperate and said he did know what

happened.

BY MR. RENSCH:

Q. My question to you is, though, when you approach

somebody, when they are the suspect of something, it's not

unusual for someone to say hey, I don't know what you are

talking about, is it, sir?

MR. MANDEL: Objection again on the grounds of

relevance.

THE COURT: Overruled.

A. Sometimes.

BY MR. RENSCH:

Q. Sometimes what?

A. Sometimes the defendant will respond in that manner.

MR. RENSCH: Okay, nothing further, thank you.

REDIRECT EXAMINATION BY MR. MANDEL:

Q. Mr. Rensch asked you about some testimony in the grand

jury, do you recall that?

A. Yes, I do.

Q. At that time were you testifying as to the findings of

Dr. Brown?

A. Yes.

Q. And he indicated that he didn't find any trauma on the

body?

A. Yes.

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

 

PAGE 465


Q. And that would include that he did not find the gunshot

wound, correct?

A. That's correct.

MR. MANDEL: Nothing further, Your Honor.

THE COURT: Anything further?

MR. RENSCH: Nothing further.

THE COURT: Thank you, Mr. Ecoffey, you may step

down. Call your next witness.

MR. MANDEL: No more witnesses. Your Honor, the

United States would rest.

THE COURT: Very well, defense may proceed.

MR. RENSCH: I would like to reserve my right to

make a motion, and at this time I would call David Price to

the stand.

THE COURT: Very well, you can make your motion

after we have recessed for the evening.

MR. RENSCH: Okay, thank you, Your Honor.

DAVID PRICE,

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

said as follows:

DIRECT EXAMINATION BY MR. RENSCH:

Q. Please state your name for the record, sir?

A. David Price, P-R-I-C-E.

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

 

PAGE 466


Q. How are you presently employed?

A. I am a Special Agent with the Federal Bureau of

Investigation.

Q. How long have you been so employed?

A. About 33 years.

Q. What type of training do you go through to become a

Special Agent with the FBI?

A. I went through the basic course, I think that was three

or four months back in 1971, and continued training now and

then throughout the career.

Q. I would like to direct your attention to the year 1975.

Do you have that timeframe in mind, sir?

A. Yes, sir.

Q. How were you employed at that time?

A. I was an FBI agent stationed here in Rapid City, South

Dakota.

Q. How long had you been stationed in Rapid City at that

point?

A. I think I was here in 1973.

Q. As it relates to your duties as a Special Agent with the

FBI, did those duties include cultivating informants?

A. It did.

Q. How so?

A. Informants are used to tell you who does crimes, to warn

you of crimes, and basically that is what informants are for.

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

 

PAGE 467


Q. Did you personally take part in cultivating informants

or contacts within the American Indian Movement in 1975?

A. Yes, sir.

Q. In that regard in 1975, did you come into contact with

informants who were working for the FBI against the American

Indian Movement?

A. I am sure I did.

Q. Was one of the informants that you --

A. Sir, may I qualify one thing.

Q. No, you can't. No. I have to ask you the questions,

because otherwise it goes on for a long time. Did you know an

informant named John Stewart?

A. I don't know that John Stewart was an informant.

Q. Did you know a John Stewart?

A. I had contact with a John Stewart.

Q. What year would that have been?

A. 1975 or 1976.

Q. Did you know an individual by the name of Anna Mae

Pictou-Aquash?

A. I met Anna Mae Pictou twice.

Q. When did you meet her?

A. I met Anna Mae Pictou the first time April 10th, 1975.

Q. Where at?

A. She was at the Ted Lame residence, which is just, I

can't give you the exact mileage, but it is south maybe four

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

 

PAGE 468


or five miles south of Oglala, South Dakota on the west side

of the road, it was at that time.

Q. When was the next time that you met her?

A. I met her September 5th on the Rosebud Reservation.

Q. At any of those points did you attempt to cultivate her

as an informant?

A. No, sir.

Q. At any of those points did you ask her to become an

informant?

A. No, sir.

Q. At any of those points did you ask her if she would

provide information relative to the activities of the American

Indian Movement?

A. I asked her about a murder.

Q. Where would that have been?

A. The murder was of Jeanette Bissonette, occurred on March

26, 1975, four or five miles south of the Ted Lame place on

the land belonging to a brother of the tribal president, his

name was, Dick Wilson was the brother.

Q. And what day would it have been that you attempted to

get information from Ms. Pictou-Aquash?

A. I met her on April 10th at the Ted Lame home.

Q. In 1975 how many informants did you regularly deal with

that were involved in the American Indian Movement?

MR. MANDEL: Objection, relevance.

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

 

PAGE 469


THE COURT: Overruled. I am assuming this is kind

of background, but move along on it.

A. The informants were advising of crimes and not about the

American Indian Movement. They advise of fugitives, advise of

things like that, crimes.

BY MR. RENSCH:

Q. How many informants did you utilize in 1975?

A. Very few.

MR. RENSCH: I have nothing further, thank you, sir.

MR. MANDEL: No questions, Your Honor.

THE COURT: Thank you Mr. Price. Call your next

witness.

MR. RENSCH: The defense rests. Your Honor.

THE COURT: Very well, I am going to discharge you

for the evening now because we have some things to take care

of out of the presence of the jury. I will want you to come

back in the morning at, I am gauging time on things we have to

do before you get back. At ten o'clock in the morning. I

want you to not decide the case tonight, because now you know

you have heard the evidence, but you have not had a chance to

listen to the argument of the lawyers. The arguments of the

lawyers are not evidence, I have already told you that, you

know that. But they may be helpful to you in determining how

you are going to look at the evidence and how you may apply

the evidence and the facts as you determine them to be to the

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

 

PAGE 470


law as I will give it to you in my instructions. I gave you

some preliminary instructions at the beginning of the case, I

have given you instructions at different times, normally

limiting instructions, but some other instructions, too,

during the course of the trial. I will give you instructions

at the end of the trial which are much more detailed. You

will have to pay attention to all the instructions, however,

but you won't have those things until tomorrow, after I have

given you all those things and you have heard the arguments,

then you will good back and for the first time you can talk to

each other about the case, and that's when you should be

deciding the case and not tonight when you are by yourself.

So don't do any research, I don't want you to read the

newspaper or watch the news in case there is anything on about

this. I don't want you to talk to your children or

significant other or anybody else with regard to the case, and

just have a good night's sleep, and we will see you then at

ten o'clock tomorrow morning. Please stand for the jury.

(Jury leaves at 4:30).

THE COURT: The defense may make their motion.

MR. RENSCH: At this time. Your Honor, I would move

for judgment acquittal be entered as it relates to Mr. Arlo

Looking Cloud on the failure of the government to prove up

prima facie case of the crime charged. I would specifically

request that the Court take notice of the depth of the

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

 

PAGE 471


evidence as it related to the American Indian Movement prior

to any events which were within a timeframe near this alleged

crime. Seems to me that this started out to be a proceeding

where this background of the American Indian Movement was

going to have some nexus or connection to the offense charged

as it relates to Mr. Arlo Looking Cloud, and it in no way had

any nexus to him whatsoever. There was no reason to get into

the events of the Custer riot, the events of other things that

happened, the events of the FBI shoot-out in Oglala, all of

those things, and I think that they put him in a disadvantage

in front of this jury, and I would request the Court enter a

judgment of acquittal.

THE COURT: Alright, what does the plaintiff have to

say?

MR. MANDEL: Your Honor, I guess I don't know if

there is an evidentiary ruling that the defendant is speaking

about in terms of evidence that he thinks shouldn't have been

admitted, but he really seems to be making the wrong argument

for a motion of a judgment of acquittal. The question is

whether or not there is a prima facie case present. There is

such as to all the elements of this offense, and I could

frankly go through the evidence in detail, but the Court has

been sitting here, I don't think that that is necessary.

There is a submissible case to go to the jury in this case.

If the defendant didn't like the evidence that was being

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

 

PAGE 472


presented, I guess he has the right to object to it and the

Court can rule on those objections, but frankly that is not a

basis for granting a motion for judgment of acquittal. So it

is not even pertinent to this issue. Our position is simply

that a prima facie case was presented, that we met our burden,

and this case should go to the jury.

THE COURT: Well, objections were made, I ruled on

them, I think I was right, but the question aside from that

is, though, whether or not there has been a prima facie case

submitted, and I realize that's what the defense is saying,

and there is a prima facie case that is a submissible case for

the jury, and the case will go to the jury, and the motion for

judgment of acquittal is denied. And I am not going to cite

the evidence, but the evidence is sufficient to submit the

case to the jury. Now counsel had asked for an hour apiece

for argument. Once again, of course, that doesn't mean you

have to use it, but that's up to you. I told you I would

grant you that, which I will, and I do. Now with regard to

the settling of the instructions, if you would, I would like

you to wait around this evening, because I want to go over the

instructions once more because I never finalize them until I

am sure what the evidence is, and then I will give you then

the instructions yet this evening. So I want you here at 9:00

in the morning and we will settle the instructions, and then

we will argue starting at 10:00. You realize that my practice

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

 

PAGE 473


is that I instruct after argument. I like the jury to go out

having heard from me last as opposed to the impassioned pleas

of counsel. So you have the right, though, to use the

instructions, and you can put them up on the display system if

you want, and the only thing is you use ones without authority

on them so when a juror is looking at an instruction they

don't know if it is one the defense proposed or the government

proposed or one the Court just gave on its own anyway, which

most of them are. Are there any questions?

MR. RENSCH: I have no questions. I have a request,

could I please have a copy of the initial instructions that

you read to the jury as well, Your Honor?

THE COURT: Yes. You can get them from the clerk.

At least I think I gave them. If I didn't, I should have

given them. I will file them now with the clerk and you can

get a set of them from the clerk. You know, I made one, and I

told both of you ahead of time, both sides ahead of time, I

made one hand correction before I read them. Let me look at

that and make sure it is on that copy, this is the one I

actually read from. It is in pencil, I will make it in ink

now. Anything else from the defense? From the government?

MR. MANDEL: No, Your Honor.

THE COURT: Thank you, see you at 9:00 in the

morning, we are in recess.

(Recess at 4:40 p.m.)

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


 

PAGE 474

 

INDEX TO WITNESS

DENISE MALONEY PICTOU

DIRECT EXAMINATION BY MR. MANDEL .............. 293

CROSS EXAMINATION BY MR. RENSCH ............... 298

CANDY HAMILTON

DIRECT EXAMINATION BY MR. MANDEL .............. 299

CROSS EXAMINATION BY MR. RENSCH ............... 318

JEANETTE EAGLE HAWK
DIRECT EXAMINATION BY MR. McMAHON ............. 326

CLEO GATES

DIRECT EXAMINATION BY MR. MANDEL .............. 333

CROSS EXAMINATION BY MR. RENSCH ............... 340

REDIRECT EXAMINATION BY MR. MANDEL ............ 342

RICHARD TWO ELK

DIRECT EXAMINATION BY MR. McMAHON ............. 343

CROSS EXAMINATION BY MR. RENSCH ............... 356

JOHN TRUDELL

DIRECT EXAMINATION BY MR. McMAHON ............. 380

CROSS EXAMINATION BY MR. RENSCH ............... 391

REDIRECT EXAMINATION BY MR. McMAHON ........... 405

RECROSS EXAMINATION BY MR. RENSCH ............. 406

ROBERT ECOFFEY

DIRECT EXAMINATION BY MR. MANDEL .............. 408

CROSS EXAMINATION BY MR. RENSCH ............... 432

REDIRECT EXAMINATION BY MR. MANDEL ............ 464

DAVID PRICE
DIRECT EXAMINATION BY MR. RENSCH .............. 465

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


 

PAGE 475

 

INDEX TO PLAINTIFF EXHIBITS

1 Marked ............................ 422
1 Offered ...................... 423
1 Received ..................... 423

2 Marked ............................ 422
2 Offered ...................... 423
2 Received ..................... 423

3 Marked ............................ 422
3 Offered ...................... 423
3 Received ..................... 423

15 Marked ........................... 422
15 Offered ..................... 423
15 Received .................... 423

34 Marked ........................... 302
34 Offered ..................... 303
34 Received .................... 303

35 Marked ........................... 302
35 Offered ..................... 303
35 Received .................... 303

38 Marked ........................... 306
38 Offered ..................... 307
38 Received .................... 307

43 Marked ........................... 413
43 Offered ..................... 414
43 Received .................... 414

44 Marked ........................... 413
44 Offered ..................... 414
44 Received .................... 414

45 Marked ........................... 428
45 Offered ..................... 429
45 Received .................... 430

INDEX TO DEFENSE EXHIBITS

F Marked ............................ 456

MISCELLANEOUS INDEX

Government Rests .................... 465

Defense Rests ....................... 469

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


PAGE 476

 

STATE OF SOUTH DAKOTA )

:SS CERTIFICATE

COUNTY OF MINNEHAHA )

This is to certify that I, JERRY MAY, Court Reporter in the

above-named Court, took the proceedings of the United States

District Court, and the forgoing pages 1-473, inclusive, are a

true and correct transcript of my stenotype notes.

I FURTHER CERTIFY that I am not an attorney for, nor related

to the parties to this action and that I am in no way

interested in the outcome of this action.

Dated at Sioux Falls, South Dakota, this 12th day of February,

2004.

COURT REPORTER

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

 

*END OF DOCUMENT*

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