DEFENDANTS MOTION AND MEMORANDUM
TO SEVER COUNTS AND DEFENDANTS
Facts
The grand jury has charged Geri xxxxxxxand her co-defendant, Barbara xxxxxx, with robbing the Sears Mall Oaken Keg liquor store on December 29 and the Dimond branch of Credit Union One on December 30, 1996. In addition, the grand jury has charged Ms. xxxxxx with robbing the DeBarr Road branch of Credit Union One on November 18, 1996. Each defendant is also charged with use of a firearm during a crime of violence under 18 U.S.C. 924(c) for each individual robbery, and Ms. xxxxxx is charged with being a felon in possession of a firearm for each individual robbery.
According to the Affidavit of Philip Niedringhaus in support of the Criminal Complaint and the arrest warrants issued in this case, the government's apparent theory is that the Oaken Keg robbery and the Credit Union One robberies were part of a series of robberies committed by codefendant Barbara xxxxxx and others. The additional robberies include a robbery of the Safeway on the Old Seward Highway on November 9 and a robbery of the Safeway on East Dimond on December 21. The government apparently believes persons other than Ms. xxxxxxxwere involved in the other robberies.
According to the Niedringhaus Affidavit, the Old Seward Safeway robbery involved a black male and two white females. The DeBarr Credit Union One robbery involved a black man and one white woman. The East Dimond Safeway robbery also involved a black man and a white woman. Oaken Keg robbery and the Dimond Credit Union One robbery also involved a black man and a white woman. Barbara xxxxxx is a black female Geri xxxxxxxis a white female. The following table describes the robberies, the initial descriptions of the robbers, and the charges brought against Ms. xxxxxxxand Ms. xxxxxx:
Robbery Persons described xxxxxx xxxxxxxxx
Safeway 1 -BMA, 2-WFA no charges no charges
Credit Union One 1 -BMA, 1 -WFA charged no charges
Safeway 1 -BMA, 1 -WFA no charges no charges
Oaken Key 1 -BMA, 1 -WFA charged charged
Credit Union One 1 -BMA, 1 -WFA charged charged
In addition, although the undersigned defense counsel has not
received any written discovery concerning the alleged statement, Agent Niedringhaus reported to counsel that co-defendant Barbara xxxxxx made a post-arrest statement to the effect that "Red" (Ms. xxxxxx's nickname for xxxxxxxxx) was not involved in at least one of the above-described robberies. This statement, while exculpatory with regard to uncharged conduct, is inculpatory with regard to Ms. xxxxxxxxx's alleged participation the charged robberies.
According to the Complaint filed in Mr. Fox's case, law enforcement officials were involved in attempting to make controlled buys of cocaine from co-defendant Sidney Potts. After two confidential informants made initial contact with Mr. Potts, they left the house at 6711 E. 10th Avenue drove to another residence at 231 N. Bunn. The two confidential informants, Mr. Potts, and Mr. Fox were in the car. Upon arrival at 231 N. n, Mr. Fox allegedly went inside the house, then came outside and advised the individuals in the car that they did not have any cocaine for sale. They drove back to 6711 E. 10th Avenue, where Mr. Fox left the vehicle and went back into the house. The three individuals remaining in the vehicle then drove to 8964 Blackberry, where Mr. Potts allegedly purchased cocaine. Once the vehicle left the Blackberry location, law enforcement officials stopped the vehicle, arrested Mr. Potts, and found cocaine in his possession.
Upon arriving at the house on E. 10th Avenue to serve a search warrant, law enforcement officials found Mr. Fox in an automobile with other individuals and arrested him.
During execution of the search warrant at 6711 E. 10th Avenue, officers found a round of ammunition in the one of the bedrooms. This ammunition forms the basis for the ammunition possession charge against Potts.
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