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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
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INDEX TO PLAINTIFF EXHIBITS 1 Marked ............................ 422 2 Marked ............................ 422 3 Marked ............................ 422 15 Marked ........................... 422 34 Marked ........................... 302 35 Marked ........................... 302 38 Marked ........................... 306 43 Marked ........................... 413 44 Marked ........................... 413 45 Marked ........................... 428 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
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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
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