Carson Walker, THE ASSOCIATED PRESS

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SIOUX FALLS, S.D. - The pistol used to kill a Canadian woman who was an American Indian Movement activist was the same one taken from one of the two men charged with being an accessory to her murder, federal prosecutors argued in a court filing.

The attorneys have asked a judge to let them use evidence from another 1975 murder case in the upcoming trial of John Graham and Richard Marshall, who pleaded not guilty to charges they committed or aided and abetted the murder of Annie Mae Aquash later that year.

Their trial is to start May 12 in Rapid City.

The prosecution theory is that Marshall gave a .32-calibre revolver and shells to Graham and two other AIM members who stopped by Marshall's house with Aquash around Dec. 12, 1975, hours before Graham shot her with the gun.

At the time, Marshall was awaiting trial on a charge he killed Martin Montileaux of Kyle on March 1, 1975, at the Longbranch Saloon in Scenic, for which he was later convicted.

U.S. Attorney Marty Jackley and Assistant U.S. Attorney Bob Mandel have filed a notice that such evidence "is an integral part" of their case against Graham and Marshall because the handgun used to kill Aquash was taken from Marshall after his arrest in March 1975.

Marshall used a .22-calibre handgun to kill Montileaux but investigators also took several other rifles and revolvers from him, including an H&R .32-calibre revolver that was returned to Marshall around June 1, 1975, the prosecutors wrote in their notice.

Jackley and Mandel wrote that the night Aquash was killed, Theda Clarke, Arlo Looking Cloud and Graham went to Marshall's house in Allen and that Marshall talked to the trio in his bedroom.

During that conversation, Marshall "provided consultation, including the exchange of a handwritten note from Theda Clarke asking if he could take care of this 'baggage"' and gave the three the .32-calibre handgun and shells, the prosecutors wrote.

A pathologist scheduled to testify in the trial said he found a slug of that size in Aquash's head during the autopsy.

Jackley and Mandel argued that the Montileaux details should be allowed in the Aquash case because they fit the legal requirements and support evidence that Marshall aided and abetted Aquash's killing.

Looking Cloud was convicted in 2004 for his role in Aquash's murder and sentenced to life in prison. Clarke, who lives in a western Nebraska nursing home, has not been charged.