Proceedings recorded by mechanical stenography, transcript produced by computer.

(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

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

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?

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

this from somebody who was there, and --

Q. Did you then ask him about the details of what took place?

A. Yes. We asked him that we really didn't need to know

all the details, but we needed to know how our mother died.

Q. You recall what he told you about that?

A. Yes, I do. He had told me that he had gotten a phone

call and that he was instructed to go with Theda and John Boy

to Denver to pick up my mother at Troy Lynn's house.

Q. Let me interrupt you. He say he was the one who got the

phone call?

A. They had received a phone call. He didn't say exactly

who got the phone call. And I asked him then at that point, I

guess he was emotional, if he had been drinking that day, he

said no. Then I asked him was my mother at Troy Lynn's house

when he got there, and he said yes, she was there. And that

when he got there they picked her up and took her to Rapid

City the first day, and then the second day went to Rosebud,

and from Rosebud went to a house, he stayed in the car with my

mother, and Theda and John Boy went up to into the house. And

we asked him at that point how our mother was in the car, if

he had talked to her, and he said no, not really. He said no,

not really, they didn't have a conversation. We were trying

to find out what her demeanor was like for our own personal

purposes. He then said that they came out of the house and

that he felt bad because he didn't know that's what they were

going to go out and do. He said there were people discussing

and calling her informants, that Angie, Theda and John Boy had

called her an FBI informant, and that they thought they were

just taking her out to scare her. Then they took her out to a

location, he didn't, he may have said, I can't remember the

exact site.

Q. Specifically did he say what happened when they got to

that location?

A. Yes, he did. He said that when they got there they all

got out of the car and that he was instructed to stay at the car.

Q. He meaning Arlo?

A. Yes, he said I was told to stay with the car. That

Theda and John Boy went up over the hill, and he heard a gun

shot, and Theda and John Boy came back and my mother didn't,

and they got in the car and drove away.

Q. Did he tell you anything else about this incident?

A. That was it. That, we thanked him for telling us, and

we wished him well in his healing, and that was the end of the

conversat ion.

Q. So I understand this, and I am clear, what he told you

was that he wasn't even present when she was shot?

A. No.

Q. And that Theda Clark and John Boy Patton did that?

A. He used the words Theda and John Boy, yes.

Q. When your mother was murdered, how old were you?

A. I would have been eleven approximately. Well, I didn't

find out until just shortly before my eleventh birthday. I

wasn't told right away.

Q. How old was Debbie?

A. She is fifteen months younger than me.

MR. MANDEL: I have no further questions, Your

Honor.

THE COURT: Cross examination.

CROSS EXAMINATION BY MR. RENSCH:

Q. My condolences, Ma'am. How long was the conversation?

A. It wasn't terribly long. I couldn't put a time on it.

Time stood still for me at that time.

Q. Did Mr. Looking Cloud say that he was sorry?

A. He said, his words to me were he felt bad, and he may

have said sorry, but what I heard was that he felt badly about

he hadn't called us in a long time.

Q. He told you that he didn't know that they were going to kill her?

A. That's correct.

Q. When you mentioned that something about a phone call, at

first you said he had gotten a phone call, and then you said

he might have said they had gotten a phone call.

A. Um-hum.

Q. Do you remember exactly what he said about that?

A. I don't remember clearly, no. That there was a phone

call that day was the impression he left on me.

Q. So someone had made a phone call somewhere asking that

your mother be taken someplace?

A. That's correct.

MR. RENSCH: Thank you, Ma'am, nothing further.

THE COURT: Anything further?

MR. MANDEL: No, Your Honor.

THE COURT: Thank you, Ma'am, you may step down.