(Bench Conference)

MR. MANDEL: Your Honor, this refers to an interview

that took place pursuant to a proffer that was made. We

agreed it would not be used against the defendant. We did not

use it. For the defendant to seek to put this in, it is

hearsay evidence, it is not admissible under any exception to

the hearsay rule. We have steered clear of it, because it

wasn't usable, we agreed not to use kind of a queen for a day

thing, we agreed not to use it, but I don't think we can have

that turned back on us. And as I say, this at this point is

straight hearsay testimony. He is seeking to offer it, we

didn't offer that and it doesn't fall under any of the

exceptions to the hearsay rule.

MR. RENSCH: It's my client's statement, the hearsay

rule does not apply to it, and it is exculpatory.

THE COURT: We are going to have a hearing out of

the presence of the jury on this one.

(End Bench Conference).

THE COURT: We are going to have a hearing out of

the presence of the jury, it is time for an afternoon recess

anyway. So don't talk to each other about the case, we will

be in recess maybe a little over fifteen minutes, I have to

deal with an evidentiary matter. Please stand for the jury.

(Jury Leaves).

THE COURT: Please be seated. Alright. Does

Mr. Ecoffey need to remain on the stand for this hearing.

MR. MANDEL: I guess that all depends what comes up,

Your Honor.

THE COURT: Well, okay, sit tight then. The

government asked for the side bar so the government may

proceed.

MR. MANDEL: Your Honor, under the rules of evidence

the United States has the ability to bring in the defendant's

statement as admissions against interest. The defense does

not have the right to bring in other statements, and in fact

these aren't admissions against interest. The defense claims

the statement it wishes to bring in is exculpatory. What

happened was in 1994, the defendant, represented by counsel,

came in and agreed to use a proffer. The terms of that

agreement were that we would not use the statement against

him, we would not do so, we didn't proceed on the basis of

that statement. As part of that agreement at that time he

also took a polygraph test, and frankly that polygraph test

came back showing deception on the issue of whether or not he

fired the shot. Now this is stuff that we didn't go in, we

couldn't go in, isn't properly admissible before the Court.

Now the defense wants to go in to it and offer it. Our

position is very simple, as to the statement there is not the,

any basis for the defense to bring it in. Doesn't fall under

any exception to the hearsay rule, and the fact that it is the

defendant's statement as he asserted doesn't make it

admissible, and the fact it is an exculpatory statement by the

defendant doesn't make it admissible. What the difference

between the government bringing it in and the defendant

bringing it in, the answer is simply this. For us it becomes

a hearsay statement that suffers the same problem as all

hearsay statements, and why they don't get in, not subject to

cross examination. Stuff we choose to bring in that is

inculpatory, or exculpatory for that matter, that's our right,

but not the defense's right to enter those hearsay statements

into evidence.

MR. RENSCH: First of all, they are claiming that

the statements that they have admitted thus far of my client

are admissible as admissions against interest. They have said

in part that the statements that are admissions against

interest are consistent with the statement that was given in 1994.

THE COURT: Wait a minute.

MR. RENSCH: Hold on.

THE COURT: I want to ask you a question, so just a

minute. That's the only way I can learn things, Counsel.

Hold tight, I want to ask you questions. How is he saying

that because the '94 statement isn't in evidence, how are they

saying it was consistent.

MR. RENSCH: The reason I tried to interrupt is they

have taken the position in the extradition proceedings in

Canada against John Boy Patton that Arlo Looking Cloud has

made statements about this matter involving John Graham, and I

believe the extradition matter refers to three statements and

says those statements are consistent. Now the point I was

going to make was that they are saying that what they are

introducing now would constitute an admission against

interest, and that would be an exception to the hearsay rule.

To the extent the '94 statements are consistent to these

admissions against interest that the government is now placing

before the jury, they are likewise an exception to the hearsay

rule. Even separately and apart from that, separately and

apart from that, while they try to say that the statements are

generally consistent, I am talking about the 2003 statement

and the statement in July of 1995 where he went out there to

the scene. They have talked also about some minor in

inconsistencies and he has testified about some minor

inconsistencies, so to the extent the 1994 statement would

buttress the consistencies with these statements, it should be

allowed in to support the statements from '95 and 2003. The

same way if he were on the stand and they were to come in and

say, well, you have made this statement and it is inconsistent

at such and such a time, and I could then bring in a previous

or a prior consistent statement to buttress it, it's the same

theory, even though he is not taking the stand. When they put

his statement on the stand in evidence, and there is a prior

consistent statement in certain respects, inconsistent in

others to the extent that it would be against interest, it

should come in through the hearsay rule, it should come in

through buttressing the existence of these statements.

THE COURT: Just a minute. I am not familiar with

anything coming in through the hearsay rule. It comes in

either because it isn't in the hearsay rule or an exception to

the hearsay rule, the hearsay rule keeps things out.

MR. RENSCH: I meant to say through the exceptions.

THE COURT: Go ahead.

MR. RENSCH: That's my position. He made this

statement with the government asking him a series of long

questions back in 1994. It would be our position that to the

extent they have attacked the statements of Mr. Looking Cloud

that are in the record now, we are allowed to bring this up so

that we can show that there is consistency. And to the extent

that there is not consistency, so they are trying to say the

statements are against interest, it shouldn't be admissible

for that reason as well. If they talked to him in 1994 with

this proffer agreement against him, but they won't use it, it

doesn't mean he can't use it.

THE COURT: It might. What about the counsel for

the government has represented that part of the proffer was

taking a polygraph, and the polygraph indicated deception with

regard to whether or not apparently Mr. Looking Cloud was the

one who had used the gun. Well, my question is not wanting to

complicate this any further than necessary, but you know the

Eighth Circuit there is no per se rule as to the exclusion of

hearsay. There is in some Circuits, but there is not in the

Eighth Circuit. I just wrote an opinion that dealt with that

that I released last week, so I am really fresh on the law on

that point. If the proffer comes in, then, and maybe the

government wouldn't try to put that legal issue in the case,

but if the proffer comes in then, does at least then do we

have a Daubert question with regard to the polygraph, because

that is in the Eighth Circuit what the law is, that you have a

Daubert. I excluded one. I don't have any idea what the

procedures were or anything about this one, I don't know

anything about Daubert, which is impossible to get in to,

what's your position on that?

MR. RENSCH: First of all, the first polygraph that

he took was inconsistent, that was administered by an FBI

agent who was present in Rapid City. Second polygraph he took

indicated a fail. This was a polygraph in Denver. It would

be.our position that, you know, we are not trying to bring in

the polygraphs. We are trying to bring in the contents of the

statement to buttress what they claim now would be

inconsistent, and to provide for exculpatory information to

the extent that it is consistent with the theory of our

defense. As far as getting in to polygraphs, you know, I have

tried in a murder case in Pierre to get in an exculpatory

polygraph that showed that he passed the polygraph saying that

he didn't help with the killing. Not in this particular case.

I am not fresh on the law on that right now, but I will tell

you this, I have spent over nine weeks of Sunday trying to

figure out how to get that in. I don't know if even if we get

in to the contents of his statement somehow a polygraph

administered back in 1994 or 1995 somehow miraculously becomes

admissible. I don't see how it would become admissible simply

because he made a proffer. I am trying to get this in to show

what he said back then, not to show that the government has

violated some agreement or anything like that.

THE COURT: I am not keen to get in to the polygraph

issue, but since it was brought up, I want to talk about it.

MR. RENSCH: An inconclusive on a polygraph is one

thing, one polygraph examiner can read an inconclusive and say

that's bad, another polygraph examiner can read an

inconclusive and say that's a fail. If I wanted to dig in to

that, there is a possibility one could look at his first chart

and say he passed that and thus, you know, he should have

obtained some benefit from this matter back in 1994. But it

seems that we would be hiding reality if we, he could not get

into the fact that he told them what his position was back in

1994.

THE COURT: Do you have any authority, getting away

from polygraphs, because that is something that I don't want

to get in to. I just wanted to explore what does it mean,

because I heard about it for the first time, but with regard

to the statement position, do you have any authority you are

urging.

MR. RENSCH: I don't have any with me, I would

request an opportunity to look it up. My thinking is simply

this, if it is a statement made by the defendant after being

advised of his rights, then to that extent it would be

admissible because of the statement of the government. The

government, if -- oh, and another part of the proffer

agreement was if he were to take the stand and testify, they

would be able to utilize that for impeaching information. If

they would be able to utilize it for impeaching information,

and if they now bring statements that he has, they are going

to claim in front of this jury they are inconsistent in

certain respects, he should have the right to buttress his

position with what was said to them back in 1994, but I do not

have a case at my fingertips right now.

THE COURT: Thank you. I take it counsel for the

government wants to say something before I rule.

MR. MANDEL: Start off with this, this is no

surprise the defendant wants to use it, he knew it a long time

ago, and he knew we weren't going to bring it in, that we

couldn't use it because it was pursuant to that proffer. So

it is not some big shock as we stand here today, and the rules

of evidence as to hearsay are not because the defendant want's

to put it in, or because it is helpful, or because the

statement was given to a law enforcement officer that it then

becomes admissible. Under rule 801 sub B sub 2, admission of

a party opponent, the statement has to be offered against the

party. Got to be offered by the opponents, he can't offer it

himself. This is inadmissible hearsay. Thank you, Your

Honor.

THE COURT: Let me see the proffer agreement and

the, I assume there was a proffer statement that was reduced

to writing.

MR. RENSCH: I do have one, it is in a blue

notebook. I have lost an entire notebook. I don't have it

with me, I took it back to my office to work on it over lunch.

THE COURT: Well, the government would have copies.

MR. McMAHON: You want the transcript, the letter

and this transcript?

THE COURT: Yes, both, please. Well, instead of

looking at the top of my head, you as well as the people in

the audience might as well have a.break. So we will be in

recess for fifteen minutes until I read this. Thank you.

MR. McMAHON: Your Honor, can we approach?

THE COURT: Yes.

MR. McMAHON: I just wanted Tim to be aware that the

only copy I have is one I have highlighted.

MR. RENSCH: I have copies that are blank.

THE COURT: Doesn't make any difference to me. I

have got one, I will just read it.

( Recess at 3:35 to 4:00.

THE COURT: During the recess the government,

counsel and counsel for the defense both came back together to

chambers to urge their respective authorities. The defense

urged rule 806, the government cited United States versus

Waters, which my lawyer had already made a copy of for me, and

along with some other cases. The ruling is as follows: 806

is not applicable, because it starts off saying when a hearsay

statement, which this isn't, or a statement defined in

801(d)(2)(C), (D) or (E) has been admitted in evidence. Well,

which it hasn't, because 801(d)(2) (C), (D) and (E) are things

that we aren't really talking about here, authorized agents

and so on. (d)(2)(A) talking about hear the party's own

statement, and that isn't included within the rubric of 806,

so 806 doesn't apply. 801(d)(2)(A), as I mentioned, does

apply, and under that in both the Waters case, which is a case

interestingly coming from the District of South Dakota at 194

F.3rd 926, a 1999 decision, re-hearing denied in 2000. The

Court said Rothgeb did not, and could not, overrule the rules

of evidence. Federal Rules of Evidence 801(d)(2) provides an

out-of-court statement offered quote against a party end quote

is not hearsay. In contrast here, Waters, who is the

defendant, not the government, sought to introduce a prior

statement consistent with his plea of not guilty. And the

Court goes on to say such statements when offered by the

defendant are hearsay, except in narrow circumstances not

present here, and not present here in this case either. Then

also I would cite in support of my ruling to not allow going

into the proffer United States versus Sadler, 234 F.3rd, 368

at 2000, Eighth Circuit decision. So the objection is

sustained, and I want to state for the record I reviewed the

proffer agreement. The proffer agreement as well as the

proffer itself in preparation for the ruling. Alright.

MR. RENSCH: At this point can I make an offer of

proof? At this point if allowed we would have sought to

introduce the transcript, and ask that it be marked and placed

into the record as an offer of proof, and that I would have

used it to try to fight the fact that the government is going

to say and has said through their testimony that in 1994 when

Mr. Looking Cloud was approached he denied being there, and

then they brought in statements where he later said he was

there and reenacted the events. And we would just request the

Court utilize that as exculpatory hearsay, and that given the

fact that that statement was made with the full knowledge and

participation of the government, and with this man being

subjected to questioning, and the fact it is consistent in a

very good sense with the statements that have been offered by

the government, that it would fall within the residual

exception to the hearsay rule and would just request the Court

reconsider its ruling.

THE COURT: So you want to have the proffer letter

as well as the proffer made an Exhibit in the Court file?

MR. RENSCH: Just the transcript of the contents of the tape

interview in 1994 when Mr. Looking Cloud told them essentially

what he told them in 2003 so that there is some reference and

I don't need to go through it all by way of an offer of proof.

Not the proffer letter itself, the actual transcript of the

event.

THE COURT: That's what I am talking about, because

the proffer letter which is just two pages, that's the

agreement, but then I read a cover sheet, and then I read 24

pages of transcript.

MR. RENSCH: Very well, I want to make sure that

statement was included.

THE COURT: Yes, let's get a clean copy, because the

one I have is marked up now.

MR. RENSCH: I have one here, I will give it to you

so that you have it.

THE COURT: This doesn't have the proffer agreement.

MR. RENSCH: No, the Exhibit.

MR. McMAHON: Why don't you keep my letter of the

proffer agreement. If I can just have my transcript.

THE COURT: I will attach the proffer agreement

letter and then there is a cover sheet, so then this will

become the Exhibit and you get your marked one back.

MR. McMAHON: Thank you.

THE COURT: Then I will give this to the clerk

ultimately. This will be a defense hearing Exhibit, and of

course one we don't send back to the jury. Alright, are we

ready to proceed?

(Exhibit F marked For identification.)

MR. RENSCH: Yes, Your Honor.

MR. MANDEL: Yes, Your Honor.