Kevin F. McCoy

Assistant Federal Defender

FEDERAL PUBLIC DEFENDER

FOR THE DISTRICT OF ALASKA

550 W. Seventh Avenue, Suite 1600

Anchorage, AK 99501

(907) 271-2277

Attorney for Defendant

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, ) CASE NO.

)

Plaintiff, )

) REQUEST FOR EVIDENTIARY vs. ) HEARING

)

xxxxxxxxxxxxxxxx, )

)

Defendant. )

____________________________________)

xxxxxxxxxx, through counsel, requests that her Motion to Suppress Evidence be set on for an evidentiary hearing at a date and time convenient for the court and for counsel.

Dated at Anchorage, Alaska this ___ day of February, 1997.

OFFICE OF THE FEDERAL DEFENDER

FOR THE DISTRICT OF ALASKA

_______________________________

KEVIN F. McCOY

Assistant Federal Defender

Kevin F. McCoy

Assistant Federal Defender

FEDERAL PUBLIC DEFENDER

FOR THE DISTRICT OF ALASKA

550 W. Seventh Avenue, Suite 1600

Anchorage, AK 99501

(907) 271-2277

Attorney for Defendant

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, ) CASE NO.

)

Plaintiff, )

) EXCLUDABLE DELAY

vs. ) STATEMENT

)

xxxxxxxxxxxxxxx, )

)

Defendant. )

____________________________________)

Gennie Marie xxxxxx, through counsel, represents that a period of excludable delay under 18 U.S.C. § 3161(h)(1)(F) may occur as a result of the filing of her motion to suppress evidence.

This notice is submitted pursuant to D.Ak.L.Crim.R. 5.

Dated at Anchorage, Alaska this ___ day of February, 1997.

_______________________________

KEVIN F. McCOY

Assistant Federal Defender

Kevin F. McCoy

Assistant Federal Defender

FEDERAL PUBLIC DEFENDER

FOR THE DISTRICT OF ALASKA

550 W. Seventh Avenue, Suite 1600

Anchorage, AK 99501

(907) 271-2277

Attorney for Defendant

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, ) CASE NO.

)

Plaintiff, )

) MOTION TO

vs. ) SUPPRESS EVIDENCE

)

GENNIE M. xxxxxx, )

)

Defendant. )

____________________________________)

Gennie Marie xxxxxx, through counsel, moves this court for an order suppressing all statements taken from her in violation of the Fifth and Sixth Amendments. Ms. xxxxxx's statements must be suppressed because they were involuntary and because they were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

This motion is submitted pursuant to Fed.R.Crim.p. 12(b), D.Ak.L.Crim.R. 5 and is based upon the Memorandum of Law and the Affidavit of Gennie Marie xxxxxx filed herewith.

Dated at Anchorage, Alaska this ___ day of February, 1997.

OFFICE OF THE FEDERAL DEFENDER

FOR THE DISTRICT OF ALASKA

_______________________________

KEVIN F. McCOY

Assistant Federal Defender

Kevin F. McCoy

Assistant Federal Defender

FEDERAL PUBLIC DEFENDER

FOR THE DISTRICT OF ALASKA

550 W. Seventh Avenue, Suite 1600

Anchorage, AK 99501

(907) 271-2277

Attorney for Defendant

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, ) CASE NO. Axxxxxxxxxxxxxxxx

)

Plaintiff, ) MEMORANDUM OF LAW IN

) SUPPORT OF MOTION TO

vs. ) SUPPRESS EVIDENCE

)

GENNIE M. xxxxxx, )

)

Defendant. )

____________________________________)

I. Statement of the Facts

On June 14, 1996, at about 1:55 p.m., a woman entered the First National Bank of Anchorage on Gambell Street. The woman went to the customer service table and then entered the customer service line. When the woman reached the front of the line, teller Linda Sue Orr invited her to her work station and asked if she could help.

The woman handed Ms. Orr a white envelope. Orr noticed that the woman was shaking and appeared very nervous. Orr opened the envelop and removed a note which read "Give me all your money or I will die. I am at gun point." Orr responded by placing bills from her top drawer into the envelope which had contained the note. Orr then handed the envelope to the woman. A subsequent bank audit revealed that the robber made off with $2,371.00.

Ligaya Cardenas' husband happened to be waiting outside the bank when the robber left. The woman approached Cardenas' husband and offered $100.00 in return for a ride away from the bank. When asked why, the woman explained that something happened to her and that "she needed to call a cop." Cardenas told the woman that if she needed the police she should go to the nearby First National Bank Data Center and speak with the duty security guard. Laura Nelson encountered the woman at the front counter of the First National Bank Data Center. The woman told Nelson that she needed a cab and that she wanted to call the police. The woman explained that someone had been pointing a gun at her. Nelson last saw the woman as she walked towards the Data Center's security desk to speak with the guard.

At approximately 8:00 p.m., Special Agents Bruce Talbert and James Laverick went to the Sixth Avenue Jail to interview Ms. xxxxxx. Ms. xxxxxx was taken from her cell and placed in an interview room with the two agents. The agents explained that they knew that she was the woman who robbed the First National Bank back in June and that they wanted to question her.

Because Ms. xxxxxx was in custody, the agents advised her of the rights contained on an FD-395 Interrogation - Advise of Rights Form. Ms. xxxxxx began to cry and became very emotional. She signed this form, but requested the opportunity to speak with an attorney.

Notwithstanding her request for counsel, the agents remained in the room and obtained biographical information regarding her family, her education, her substance abuse, and her past criminal activities. During the course of the interrogation, xxxxxx acknowledged that she robbed the bank on June 14, 1996. She explained that she was a prostitute and that Charles Bass was her pimp and that Charles Bass forced her to commit the robbery. She indicated that Bass got most of the money.

The matter is now before the court on Ms. xxxxxx' motion to suppress evidence of her statements because they were involuntary and because they were taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

II. Ms. xxxxxx' Statements Must Be Suppressed Because The Resulted From Coercive Police Dominated Activity.

Whenever the government seeks to introduce an admission by the accused, it has the burden of proving by a preponderance of the evidence that the statement was voluntarily given. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626-27, 30 L.Ed.2d 618 (1972); Jackson v. Deno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

A challenge to the voluntariness of an admission requires this court "to determine whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution[.]" Collazo v. Estelle, 940 F.2d 411, 415 (9th Cir. 1991)(en banc), cert. denied, ___ U.S. ___, 112 S.Ct. 870, ___ L.Ed.2d ___ (1992)(quoting Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 450, 88 L.Ed.2d 405 (1985)).

An admission is involuntary if it is extracted by any sort of threats or violence or by the exertion of any other improper influence. U.S. v. Bautista-Avila, 6 F.3d 1360, 1364 (9th Cir. 1993). The test is whether, considering the totality of the circumstances, the government obtained the admission by physical or psychological coercion such that the suspect's will is overborne. Derrick v. Peterson, 924 F.2d 813, 817 (9th Cir. 1991). Actual violence perpetrated on the accused is unnecessary.

Our cases have made clear that a finding of coercion need not depend upon actual violence by a government agent; a credible threat is sufficient. As we have said, coercion can be mental as well as physical, and . . . the bold of the accused is not the only hallmark of an unconstitutional inquisition.

Arizona v. Fulminante, 499 U.S. 279, 287, 111 S.Ct. 1246, 1252-53 113 L.Ed.2d 302 (1991), quoting Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 279, 4 L.Ed.2d 242 (1960). But physical violence and the threat of further physical violence is certainly sufficient to overbear an individual's will to resist. U.S. v. Jenkins, 938 F.2d 934, 938 (9th Cir. 1991).

An evidentiary hearing in this case will demonstrate that the statements at issue resulted from unconstitutional police coercion. Because police agents overbore Ms. xxxxxx's will to resist, the statement at issue was involuntary and must be suppressed.

III. Ms. xxxxxx' Statement Must Be Suppressed Because The Statement Was Obtained In Violation Of Her Fifth And Sixth Amendment Rights To Counsel.

Since 1966, law enforcement officers engaged in custodial interrogation of a suspect have been required to recite a prophylactic warning designed to alert the suspect to his or her Sixth Amendment rights.

Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has the right to the presence of an attorney, either retained or appointed.

Miranda v. Arizona, 384 U.S. 436, 344-45, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).

Whenever custodial interrogation proceeds, a prerequisite to the later admissibility of any statements obtained thereafter is conditioned on the government's ability to demonstrate that the accused "knowingly and voluntarily waived his or her privilege against self-incrimination and his or her right to retained or appointed counsel." Id. at 475, 86 S.Ct. at 1628.

Any inquiry into the voluntariness of an alleged Miranda waiver has two dimensions. Collazo v. Estelle, 940 F.2d at 415.

First the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the `totality of the circumstances surrounding the interrogation' reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.

Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986).

In the instant case, Ms. xxxxxx was clearly in custody when questioned by the law enforcement officers in this case. Ms. xxxxxx found herself in a "police dominated" environment, far from public view that clearly implicated the coercion associated with custodial interrogation. See Berkemer v. MacCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984).

An accused citizen may invoke his or her Miranda rights either by choosing to remain silent or by requesting counsel. Miranda v. Arizona, 384 U.S. at 473-74. A citizen who expresses his or her desire to speak with the police through counsel cannot be subjected to further interrogation until counsel has been provided. Edwards v. Arizona, 451 U.S. 477, 484-87, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981).

In the present case, Ms. xxxxxx unequivocally expressed the desire to deal with the authorities in this matter through counsel. Compare Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). Notwithstanding Ms. xxxxxx's invocation of her Fifth and Sixth Amendment rights to counsel, the agents engaged in the functional equivalent of interrogation in violation of Rhode Island v. Innis, 456 U.S. 942, 102 S.Ct. 2005, 72 L.Ed.2d 464 (1982).

IV. Conclusion

For these reasons, Ms. xxxxxx's statements to Laverick and Talbert must be suppressed.

Dated at Anchorage, Alaska this ___ day of February, 1997.

OFFICE OF THE FEDERAL DEFENDER

FOR THE DISTRICT OF ALASKA

_______________________________

KEVIN F. McCOY

Assistant Federal Defender

Kevin F. McCoy

Assistant Federal Defender

FEDERAL PUBLIC DEFENDER

FOR THE DISTRICT OF ALASKA

550 W. Seventh Avenue, Suite 1600

Anchorage, AK 99501

(907) 271-2277

Attorney for Defendant

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, ) CASE NO. xxxxxxxxxxxxxxxxx

)

Plaintiff, )

) AFFIDAVIT OF

vs. ) GENNIE MARIE xxxxxx

)

GENNIE M. xxxxxx, )

)

Defendant. )

____________________________________)

STATE OF ALASKA )

) ss.

THIRD JUDICIAL DISTRICT )

GENNIE MARIE xxxxxx, being first duly sworn upon oath, deposes and says as follows:

1. I am the citizen accused in the above styled matter.

2. I remember when the two F.B.I. agents came to see me at the Sixth Avenue Jail.

3. I did not know that they were coming and I was surprised when I was brought to the interview room to speak with them.

4. I remember them telling me that they knew I was the woman that robbed the bank in June of 1996.

5. I remember them telling me that they were there to talk with me about the robbery and I remember them advising me of my rights.

6. I remember that I was very upset and that I began to cry. I also remember that I told them that I wanted an attorney.

7. I remember them asking me a lot of questions about my family background and about my criminal history and about what I did for Charles Bass and Michael Emanuel.

8. I remember that I did not want to talk to them without an attorney and I remember that I told them that.

FURTHER YOUR AFFIANT SAYETH NAUGHT.

________________________________

GENNIE MARIE xxxxxx

Subscribed and sworn to before me this ___ day of February, 1997.

_________________________________

Notary Public in and for Alaska

My Commission Expires: __________

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