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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
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THE COURT: Overruled -- what was the basis for the MR. McMAHON: Argumentative, calling for pure THE COURT: Sustained, answer is stricken. Anything 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
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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
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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
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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
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JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
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INDEX TO WITNESS ROGER AMIOTTE DIRECT EXAMINATION BY MR. McMAHON .............. 23 NATE MERRICK DIRECT EXAMINATION BY MR. MANDEL ............... 30 JAMES GLADE DIRECT EXAMINATION BY MR. MANDEL ............... 49 DON DEALING DIRECT EXAMINATION BY MR. MANDEL ............... 54 JOHN MUNIS DIRECT EXAMINATION BY MR. MANDEL ............... 62 DR. GARRY PETERSON DIRECT EXAMINATION BY MR. McMAHON .............. 68 WILLIAM WOOD DIRECT EXAMINATION BY MR. MANDEL ............... 80 EVAN HODGE DIRECT EXAMINATION BY MR. MANDEL ............... 96 KIMBERLY EDWARDS JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
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DARLENE NICHOLS DIRECT EXAMINATION BY MR. McMAHON ............. 112 MATHALENE WHITE BEAR DIRECT EXAMINATION BY MR. McMAHON ............. 181 BOB RITER RAYMOND HANDBOY DIRECT EXAMINATION BY MR. MANDEL .............. 199 JOAN DECKER ANGIE JANIS DIRECT EXAMINATION BY MR. MANDEL .............. 209 TROY LYNN YELLOW WOOD DIRECT EXAMINATION BY MR. McMAHON ............. 235 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
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INDEX TO PLAINTIFF EXHIBITS 4 Marked ............................. 24 5 Marked ............................. 32 6 Marked ............................. 27 8 Marked ............................. 25 12 Marked ........................... 237 14 Marked ........................... 118 23 Marked ............................ 33 27 Marked ........................... 147 28 Marked ............................ 34 30 Marked ............................ 75 31 Marked ............................ 73 32 Marked ............................ 73 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
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33 Marked ............................ 84 40 Marked ........................... 106 41 Marked ........................... 106 42 Marked ........................... 208
A - E Marked ......................... 45 A - E Offered ................... 46 A - E Received .................. 46 MISCELLANEOUS INDEX JERRY J. MAY. RPR, CM 400 South Phillips Avenue, #305A
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UNITED STATES DISTRICT COURT FRITZ ARLO LOOKING CLOUD, Defendant. * CR. 03-50020 APPEARANCES:
Proceedings recorded by mechanical stenography, transcript produced by computer. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
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(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
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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
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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
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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
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