BACKGROUND
In
response to Guy and Carrie Neighbors in March 2006 by way of their
counsel; Defense Attorney Sarah Swain, turning in a formal complaint
to LKPD Internal Affairs Sgt. Dan Ward that Lawrence Kansas Police
officers Jay Bialek and Micky Rantz were posing as FBI agents and
Indicating to witnesses that FBI Agents were involved in the Yellow
House case as a means of coercion intimidating witnesses during the
Investigation of the Yellow House case.
In
response to the complaints On April 20, 2006 LKPD Chief Ronald Olin
wrote to Ms. Swain that quote “I believe Sergeant Mike Pattrick
from this department as well as Special Agent Bob Shaefer with the
FBI has spoken with you in person about these very issues” end
quote.
Kansas
City Special Agent Bob Shaefer testified under oath in Federal Court
during a hearing August 11th, 2008 before Judge O‘Hara.
That his actual name is Walter Robert Schaefer, and his jurisdiction
is the Western District of Missouri. He did not have a file for the
investigation, nor did he interview anyone in connection to the
complaints. Mr. Schaefer also testified he did not view any of the
affidavits in connection with Guy and Carrie Neighbors complaints.
In
June of 2008, A representative from the Kansas City FBI verified that
the Kansas City FBI does not have jurisdiction over Lawrence Kansas
and does not do investigations into complaints of police misconduct
from Lawrence Kansas. Special Agent Scott Gentine and Agent Denton
Murray from the Topeka FBI verified they are the resident agency of
the FBI with jurisdiction over Lawrence Kansas. Special Agent Scott
Gentine also verified that the U.S. Attorney Marietta Parker who was
actively Prosecuting the case, had Sent down Special Agent Bob
Schaefer to investigate the Neighbors complaints.
To
insure the impartiality of the Courts, it is a conflict of interest
for a Prosecutor to be involved in the investigations involving the
case outside the court room of misconduct involving “color of
law violations” directly involved with the investigation of the
case she is prosecuting.
Because
it is a crime for a Police officer to impersonate an FBI agent and
would constitute coercion, a constitutional violation of Fifth and
fourteenth Amendment rights in violation 42. U.S.C. §
1983
.
Therefore all evidence derived from the Investigation thereafter
would be an extension of the exclusionary rule and inadmissible
“Fruits from the Poisonous tree” Including all search
warrants. Silverthorne Lumber Co. v United States.
STATEMENT OF FACTS
The
Investigation by the Lawrence Kansas Police Department into the
Business Yellow House Store Incorporated began in December in 2005.
During
a pre-indictment hearing at the Kansas Department of Justice U.S.
Assistant Attorney Marietta Parker accused the Neighbors of
bringing this on
ourselves when they filed complaints accusing
the officers of posing as
FBI agents. She told them the
investigation had cost a lot of money and
therefore she was going
to forfeit the Yellow House building regardless
of the outcome of
any plea agreements reached by both parties.
In
August 2006, the Neighbors at the request of AUSA Marietta Parker and
through the advice of counsel agreed to a Proffer. In exchange for
the proffer the Prosecutor indicated the drug and gun charge would
not be prosecuted in Federal Court and would be referred back to the
State for prosecution as a misdemeanor. And depending on the level of
cooperation; there would also be considerations made in the other
case at sentencing.
In
November 2006 the Neighbors turned in a formal complaint to LKPD
Internal Affairs that Officer Jay Bialek and Micky Rantz had
violated their rights and the Officers had violated the proffer
agreement by entering their business and attempting to question them
without their attorney present, and that the officers had violated
the chain of evidence rule by returning a Sony digital camera that
had been seized during a search warrant and never logged into the
evidence custodian.
In
response to Guy and Carrie Neighbors exercising their Constitutional
right to regress the Government through complaints, the AUSA Marietta
Parker informed Carrie Neighbors attorney Aaron McKee that she
intended to file an Indictment immediately against the Neighbors in
Federal Court for the drugs and guns. James George Guys attorney
unaware of this development contacted Guy and informed him the
Government was happy with his cooperation.
On
December 7, 2006 AUSA’s Marietta Parker and Terra Morehead
followed through with the threat and had the Neighbors strong armed
arrested in their home, instead of allowing them by way of counsel to
turn themselves in. USA v. Neighbors case 06-20171-01/02-CM1 JPO.
Charged with being “unlawful users with firearms. The
Neighbors were taken into custody at 8am and held nearly 8 hours
before being given anything to eat. When defense attorney James
George questioned AUSA Terra Morehead about the harsh treatment of
his clients, her response was quote “The Neighbors needed to be
shown who was boss.” end quote.
It
would have been constitutionally challenging for a federal court to
convict the Neighbors of being an unlawful user in violation of 18
U.S.C. & 922(g)(3). Case USA v. Neighbors 06-20171-01/02-CM1
JPO. Based upon the constitutionality of the definition.
A
conviction would be a violation of due process because the definition
of "unlawful user is too vague to supply the defendants with
adequate notice that their conduct was prohibited. United States v.
Cooper, 173 F.3d 1192, 1202 (9th Cir. 1999).
Specifically noted,
In determination of the definition of the term "unlawful user"
should be supported by "the statutory history," Which
indicated that § 922 was enacted "to keep firearms out of
the hands of those not legally entitled to possess them because of
...their criminal background" Id. at 1365-66. Specifically, it
is noted that § 922 explicitly included unlawful drug users as
an individual having a "criminal background".
Both
defendants having had no criminal background, or drug histories would
not fall under the vague definition of "unlawful user".
With
indictment under District Court for the District of Kansas case
number 06-2071-01/02-CM/JPO. Initiated in conjunction with misuse of
the legal process, in retaliation for the defendants filing a
complaint alleging police misconduct, violations of the chain of
custody rule, and sending out E-mails and public internet postings
along with blog sites, All fall within an exercise of The First
Amendment assuring the Fundamental Right to Free Speech.
Making
the circumstances of the indictment and arrest a case of
Prosecutorial Misconduct. The fact both defendants were denied food
while being held in a cell for 8 hours December 8th, 2006. Clearly
was an act of retaliation by the prosecution, and a violation of Guy
and Carrie Neighbors protected Fourteenth Amendment constitutional
and civil rights. In violation of the Eighth Amendment. Forbidding
“cruel and unusual punishments" clearly this shows
"deliberate indifference" by the responsible officials.
Attorney
Jim George was informed by prosecution team member Terra Moorehead
that the arrest and Indictment was handled in this cruel manner to
quote “Show Guy and Carrie Neighbors who is boss”.
(Clearly this establishes retaliation and Malice by the prosecution.)
Genito v. Rabinowitz, 92 N.J. Super. 225 (App. Div. 1966).
Guy
and Carrie Neighbors were first indicted with being users of a
controlled substance in possession of firearms on December 7, 2006,
in a prior case in this court, United States v. Neighbors, Case No.
06-20171-CM. After substantial time on the speedy trial clock had
run, the government filed a motion to dismiss the indictment in that
case on May 4, 2007, based on additional evidence that the government
argued it had discovered during an ongoing investigation. The
Honorable Carlos Murguia, United States District Judge, granted the
government’s motion and dismissed the first indictment without
prejudice.
On
June 20, 2007, the government re-indicted Mr. and Mrs. Neighbors. The
second indictment included the same charge as the first indictment
(as Count 2) as well as additional charges of conspiring to
manufacture marijuana and two counts of knowingly and intentionally
manufacturing marijuana.
The
second indictment was filed absent of any new incidents or additional
evidence. On September 11, 2007, counsel for Ms. Neighbors filed a
motion to dismiss Count 2 (doc. #24) in which Mr. Neighbors
subsequently joined (doc. #28) based on a violation of the Speedy
Trial Act. This court granted the motion but reserved the
determination of whether to dismiss Count 2 with or without prejudice
until after an evidentiary hearing. That hearing was held on November
27, 2007.
Case
2:07-cr-20073-CM Document 36 Filed 12/21/2007 Page 4 of 22
On June
25, 2007, defendants were rearrested at their home and a search
incident absent of a search warrant to arrest was performed. They
were not given the option to self surrender, and the government
pointed out they were not treated any differently than any other
defendants. Mr. Neighbors was taken under arrest on the first floor
of the house while two female officers went upstairs and, after
watching Ms. Neighbors dress, handcuffed her and placed her under
arrest. They were taken in police vehicles to court that day and
counsel was appointed for them. They were held in custody for about
four to six hours. Mr. Neighbors testified that no one asked him
about his former counsel, James George, and he was not allowed to
call Mr. George. The court originally appointed Alex McCauley to
represent him. Mr. McCauley subsequently withdrew from the case due
to a conflict of interest because he had formerly represented an
informant in this case. Prior to his withdrawal from the case Mr.
McCauley spent approximately 4 hours in his office going over the
prosecutions discovery with Mr. Neighbors, During the meeting Mr.
McCauley highlighted and took notes on the discovery. Before
contacting his client Mr. Neighbors, Mr. McCauley filed a motion to
stop the speedy trial clock without notifying his client Guy
Neighbors, or Phil Gibson Carrie Neighbors attorney, then withdrew
from the case and turned over the discovery along with the notes and
highlights back to the Prosecutor. The documents in the discovery
given to Mr. Neighbor’s new attorney Dionne Sheriff did not
match the documents that Mr. Neighbors had gone
over with his former attorney Mr. McCauley.
Vindictive
prosecution” occurs when a prosecutor brings additional charges
solely to punish the defendant for exercising a constitutional or
statutory right, such as a defendant’s right to a jury trial.
U.S.C.A. Const.Amend. 6 U.S. v. VanDoren, 182 F.3d 1077.
Feb
27, 2008 Marietta Parker files a Superseding Indictment USA v.
Neighbors 07-cr-20124-CM-JPO without any new incidents, in response
to moot a motion by defendants attorney Phil Gibson to remove a Lis
Pendens against the Neighbors home at 1104 Andover, and the Business
Property at 1904 Massachusetts in violation of the 10th
circuit courts statutes.
1.Because there have been no guilty
pleas, or convictions as required by the 10th circuit court for lis
pendens or forfeitures, the actions of the Government have placed
"punishment" upon the defendants in connection with the
forfeiture and lis pendens actions.
According
to Kansas law, a forfeiture proceeding under K.S.A. 65-4171 is civil
in nature, and the statutory scheme is not so punitive as to negate
legislative intention to establish a civil remedial mechanism.
However the Prosecutor Marietta Parker in this case, against Kansas
statutes, has used the forfeiture proceeding as a form of punishment.
The lis pendins placed against the defendant’s
property, absent of the required notification of the lis pendens
within 60 days of the filing and in violation of the "10th
circuit court statutes" has placed a heavy burden upon the
defendants, has interfered with the sale of the property, and has
prejudiced the defense by creating a tremendous financial burden
upon the defendants.
The government’s response to the
defendant’s motion to remove the lis pendens was to file a
superseding indictment including another forfeiture allegation
against the same property; just two days after the defendants filed
the motion to release the lis pendens. Creating more prejudice and
punishments upon the defendants.
The actions by the Government
in this case have amounted to a penalty associated to a pending case
without a plea or conviction in place.
There is a question of
law, where this court's review is unlimited. See Memorial Hospital
Ass'n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
The
Neighbors have been subjected to "multiple punishments" for
the same alleged offense in this case. See State v. Cady, 254 Kan.
393, 396, 867 P.2d 270 (1994) (citing Brown v. Ohio, 432 U.S. 161,
165, 53 L. Ed. 2d 187, 97 S. Ct. 2221 [1977]).
The United States
Supreme Court consolidated two United States Court of Appeals cases
from the Ninth and Sixth Circuits.
Both circuits held that the
Double Jeopardy Clause prohibited the government from both punishing
the defendant for a criminal offense and forfeiting defendant's
property for the same offense in a separate civil action. (As is what
has taken place here in this case)
When a forfeiture
proceeding against property is proceeded against before a person is
held guilty and condemned, and therefore causes hardship,
"punishment" and prejudice against that person, then it
does constitute a civil action against that person as a
'punishment."
The Fifth Amendment clearly states that
forfeiture cannot be used as punishment for the criminal offense.282
U.S. at 581.
When the Government places actions against the
defendants of cruel and unusual punishment during an arrest, then
clearly the defendant has been pre-punished for a
pending crime, and therefore any punishments
placed upon the defendants in the future for the same alleged crime
would constitute a violation of the Fifth Amendment rights of the
defendant.
The
prosecutor Marietta Parker has knowingly presented the courts with
false information, hearsay evidence by convicted felons in exchange
for a deal was presented before a Grand Jury in USA v. Neighbors
07-cr-20124-cm-JPO
It was established through an earlier
evidence hearing before the Honorable Federal Judge John Lungstrum
that testimony by Patrick Nieder before the Grand Jury was egregious
and riddled with false accusations. The perjured testimony presented
to the Grand Jury should have rendered the original indictment itself
not constitutionally valid. To be constitutionally valid, an
indictment “must allege lucidly and accurately all the
essential elements of the offense endeavored to be charged.”
State v. Greer, 238 N.C. 325, 327, 77 S.E.2d 917, 919 (1953).
The
purpose of the evidence presented before a Grand Jury is to determine
if a reasonably minded jury could accept the relevant evidence as
adequate and sufficient to support the conclusion of defendant's
guilt beyond a reasonable doubt. United States v. Parr, supra at
463-64; see also, United States v. Goss, 650 F.2d 1336, 1341-42 (5th
Cir. 1981).
To comport with our Criminal Procedure Act, an
indictment must “assert facts supporting every element of a
criminal offense and the defendant's commission thereof with
sufficient precision clearly to apprise the defendant . . . of the
conduct which is the subject of the accusation.” N.C. Gen.
Stat. §
15A-924(a)(5)(2006).
------------------------------------------------------
18
U.S.C. § 1001 (1976) provides:
Whoever, in any manner within
the jurisdiction of any department or agency of the United States
knowingly and willfully falsifies, conceals or covers up by any
trick, scheme, or device a material fact, or makes any false,
fictitious or fraudulent statements or representations, or makes or
uses any false writing or document knowing the same to contain any
false, fictitious or fraudulent statement or entry, shall be fined
not more than $10,000 or imprisoned not more than five years, or
both.
-------------------------------------------------------
Giving testimony to the grand jury that was "patently false
and misleading in material respects and undoubtedly led to the
erroneous indictment
The use of false and perjured testimony
cannot be reasonably explained or justified, and the use of such
evidence is an affront to our justice system and a deprivation of the
most basic and inalienable rights due each of us!
Defendants
Carrie and Guy Neighbors therefore move, pursuant to Rule 12 of the
Federal Rules of Criminal Procedure, that the Court should
dismiss the indictment due to the government’s misconduct in
knowingly and/or recklessly presenting false, misleading, and
material testimony before the grand jury.
As stated
previously, the Government has failed to investigate and indicted
this case by making deals and failing to responsibly and carefully
examine each individual’s actions and
each individual’s words.
While the law of conspiracy may
be broad in scope, its breadth is not limitless, and the Government
must show each individual’s willful and knowing involvement in
an unlawful agreement with convincing, reliable and honest evidence
beyond mere hearsay and speculation.
The
United States Supreme Court has recognized that prosecutorial
misconduct can
justify the dismissal of an indictment “‘if
it is established that the violation substantially influenced the
grand jury’s decision to indict,’ or if there is ‘grave
doubt’ that the decision to indict was free from the
substantial influence of such violations.”
Bank of Nova
Scotia v. United
States, 487 U.S. 250, 256, 108 S. Ct. 2369, 2374
(1988) (quoting United States v. Mechanik, 475
U.S. 66, 78, 106 S.
Ct. 928, 945-46 (1986)).5 See also United States v. Williams, 504
U.S. 36, 46
& n.6, 112 S. Ct. 1735, 1741 & n.6 (1992)
(district court’s supervisory power can be used to
dismiss indictment because of misconduct before grand jury, at least
where that misconduct amounts to violation of one of those few, clear
rules which were promulgated by Supreme Court and Congress to
ensure integrity of grand jury’s functions,
such as prohibitions against false declarations before grand jury and
subornation of perjury)
(citing, inter alia, Bank of
Nova
Scotia); United States v. Vallie, 284 F.3d 917, 921 (8th Cir.
2000)
(“An indictment cannot be based on perjured
testimony, and the government may not use perjured testimony at trial
if there is a reasonable chance that it would affect the jury’s
judgment[.]”) (citations omitted).
The Court should in the
name of Justice and respect for the integrity of the courts and
Justice system as a whole dismiss the Indictments based on the
government’s misconduct in knowingly and/or recklessly
presenting false and misleading testimony to the grand jury.
Guy
and Carrie Neighbors arrested 8-8-08 for “Obstruction of
Justice,” by Postal Inspector David Nitz because Guy Neighbors
informed KU Detective Mike Riner that he needed his attorney present
before making any statements or turning over any paperwork in
connection to an investigation which Mr. Neighbors and his wife were
fully cooperating with. This arrest ended up with the Neighbors
spending 12 days incarcerated at
Leavenworth Maximum security detention Prison.
During
a detention hearing Aug. 11th , It was established that
the PMB “mail box” used by the defendants in connection
with the Ebay site was in the defendants true name and also included
the names of the other people who would be receiving mail there as
required by law. The hearing also established the shared bank account
the defendant used in connection with the eBay site also had the
defendants name as a signer on the account since 2006.
Evidence
was also presented to the courts to show that Robert Samples the
seller of the Laptop had indeed signed the sellers form and the
information on the sellers form including the number of laptops sold
that day and the amount of $1,000 matched the information Mr. Samples
had given the investigating officer. The investigating officer also
stated under oath that Mr Samples had stated to the detective that
the Neighbors did not know the laptop was stolen when they purchased
it from him. Therefore the Government failed to present any evidence
of wrong doing or fraudulent activity by the Neighbors. On Aug 18th,
after spending 12 days in prison the Neighbors were released from
Federal custody and the case was closed - Terminated
08-19-08.
On
08-20-08 Based on the August 8th, arrest, a One count
INDICTMENT In Federal Court is filed against the Neighbors by the
Governments Prosecutor Terra Morehead.
United
States Of America vs. Guy & Carrie Neighbors case
no.08-20105-cm-jpO for violation of Title 18
section 1343 for wire
fraud and Title 18, sections 1512 (c) and 2. Even
though no evidence of fraud could be provided by the Government
during the Aug. 11 hearing.
LEGAL STANDARDS
.
To
punish a person because he has done what the law
plainly
allows him to do is a due process violation of the most
basic
sort.. Bordenkircher v. Hayes,
434 U.S. 357, 363 (1978).
Although
a prosecutor has broad discretion in his charging
decisions,
there are two important limitations on this
authority.
First,
a prosecutor may not bring charges with a
vindictive
motive, since ..penalizing those who choose to
exercise.
constitutional rights, .would be patently
unconstitutional...
North Carolina v. Pearce,
395 U.S. 711, 724
(1969),
overruled on other grounds by Alabama v.
Smith, 490 U.S.
794
(1989) (quoting United States v. Jackson,
390 U.S. 570, 581
(1968));
see Guam v. Fegurgur,
800 F.2d 1470, 1473 (9th Cir.
1986).
Nor may a prosecutor selectively enforce the law based
on
race, religion or some other arbitrary classification,
including
the exercise of rights under the First Amendment.
Guam,
800 F.2d at 1473; United States v. P.H.E.,
Inc., 965 F.2d
Though
similar, vindictive prosecution and 1 selective prosecution
are
distinct claims governed by different legal standards.
See
United States v. DeTar, 832
F.2d 1110, 1112 (9th
Cir.
1987). A motion to dismiss on grounds of selective
prosecution
is filed herewith.
848,
849 (10th Cir. 1992).1
No
evidence of actual bad faith is necessary to establish the
Claim
of Prosecutorial Vindictiveness. Blackledge
v. Perry, 417 U.S. 21, 28
(1974); United States v. Groves,
571 F.2d 450, 454 n.1 (9th Cir. 1978); United
States
v. DeMarco, 550 F.2d 1224, 1227
(9th Cir. 1977); see also
United
States v. Ruesga-Martinez, 534
F.2d 1367, 1369 (9th Cir.
1976)
(.the mere appearance of
vindictiveness is enough to place
the
burden on the prosecution.) .
Once
the defendant shows that charges have been increased after they
have
exercised a constitutional or statutory right, the defendant
has
demonstrated an .appearance of vindictiveness. on the part
of
the prosecutor. United States v. Shaw,
655 F.2d 168, 171
(9th
Cir. 1981) (citing United States v.
Groves, 571 F.2d at
453).
With this prima facie showing,
or other evidence of .a
realistic
likelihood of vindictiveness. Vindictiveness is
presumed
and the burden shifts to the government to prove that
the
increase in the severity of the charge was not based on a
vindictive
motive. See United States v. Spiesz,
689 F.2d 1326,
1328
(9th Cir. 1982); Shaw,
655 F.2d at 171; United States v.
Burt,
619 F.2d 531, 536 (9th Cir. 1980); see
also Ruesga-
Martinez,
534 F.2d at 1369 (when prosecution reindicts
the
accused after he exercises a procedural right, the prosecution
.bears
a heavy burden of proving that any increase in the
severity
of the alleged charges was not motivated by a
vindictive
motive.). .
An
indictment must be dismissed if
there
is a finding of .actual. vindictiveness, or if there is a
presumption
of vindictiveness that has not been rebutted by
objective
evidence justifying the prosecutor’s action,. The
Indictment
must be dismissed. United States v.
Johnson, 171
F.3d
139, 140 (2d Cir. 1999) (per curium); see
Spiesz, 689 F.2d
at
1328.
REQUEST
FOR DISMISSAL OF INDICTMENT BECAUSE THIS PROSECUTION IS VINDICTIVE
This
case involves all forms of prosecutorial vindictiveness
condemned
by the courts.
First,
as the prosecutor’s own
words
reveal, this ongoing prosecution of Guy and Carrie Neighbors is
motivated
by vindictiveness against the Neighbors for their continued exercise
of
First Amendment rights. The Prosecutor has freely admitted that the
Neighbors have brought this on themselves because of their continued
complaints against the Government. Their public blogging which during
a hearing in front of the Honorable Judge Murguia, Terra Morehead had
an emotional mental breakdown and pleaded with the Judge to gag the
Neighbors because their public blogging had caused her cases to be
under investigation 5 years back. It is the right of these defendants
to be tried by an impartial prosecutor by a jury
of their peers. This cannot possibly be accomplished with the current
prosecutors handling this case.
As
it was decided earlier by this court the defendants had a right to
speak freely about the prosecution of their case.
Piling on additional charges and Indictments against a defendant for
exercising this right constitutes a paradigmatic
example
of vindictive prosecution. Cf. United
States v. P.H.E.,
Inc.,
965 F.2d 848, 853 (10th Cir. 1992) (holding that a
prosecution
motivated by a desire to discourage expression
protected
by the First Amendment is barred and must be enjoined
or
dismissed, irrespective of whether the challenged action
could
possibly be found to be unlawful) (citations omitted);
United
States v. Adams, 870 F.2d 1140,
1145 (6th Cir. 1989)
The
broad discretion accorded prosecutors in deciding whom to
prosecute
is not .unfettered,. and a decision to prosecute may
not
be deliberately based upon the exercise of protected
statutory
rights..) (citations omitted); Brooks v.
United
States,
450 U.S. 927 (1981) stating that a court must reconcile
the
rule that a prosecutor has broad discretion to file charges where
there is probable cause with the rule that vindictive
conduct
by prosecutors is unacceptable and requires control);
see
also City of Houston v. Hill,
482 U.S. 451, 462-63 (1987)
(.The
freedom of individuals verbally to oppose or challenge
police
action without thereby risking arrest is one of the
principal
characteristics by which we distinguish a free nation
from
a police state..).
If
there is any doubt from the prosecutor’s words or actions that
this
prosecution is vindictive, the sequence of ongoing events since 2005
confirms this.
As
in other cases where courts
have
dismissed indictments due to prosecutorial vindictiveness,
the
prosecutors have repeatedly responded more harshly and vindictively
in response to the Neighbors continued assertion of their statutory
rights.. See Groves,
571
F.2d
at 453-54; DeMarco,
550 F.2d at 1227-28; see also Spiesz,
689
F.2d at 1328 (.A claim for vindictive prosecution arises
when
the government increases the severity of alleged charges in
response
to the exercise of constitutional or statutory rights..).
The result in this case ought not to be different.
As
if the fact that the prosecutors have continuously retaliated with
harsh treatment, staged an FBI investigation, interfered with the
Defendants ability to make a living, and had the Neighbors repeatedly
arrested and subjected to searches while represented by counsel were
not enough, there is additional direct evidence that the prosecutors
in this case are continuing to be vindictive
against
the defendants by filing yet a third Indictment based on an arrest
for Obstruction of Justice under a statute which the charges do not
fall under, based on a State investigation which should not have
merited Federal Charges, after a hearing August 11th,
2008 revealed no evidence of wrong doing by the defendants .
In
Wright v. United States,
732 F.2d 1048 (2d Cir. 1984), the court
established
that a defendant has a constitutional right to a
.disinterred
prosecutor. and that a prosecutor .is not disinterested
if
she has, or is under the influence of others who
have,
an axe to grind against the defendant. .... Id.
at 1055.
The
prosecutor here as acted as a .stalking horse against the Neighbors
.
and is in no way disinterested.
DEFENDANT
NEIGHBORS IS ENTITLED TO DISCOVERY IN CONNECTION TO THIS VINDICTIVE
PROSECUTION CLAIM AND TO AN
EVIDENTIARY
HEARING
although
The Neighbors believe that the prosecutor’s behavior and
admissions
regarding
the reasons for this prosecution and the new charges,
standing
alone, requires that the Indictment be
dismissed,
they respectfully request, in the alternative, for discovery to be
handed over for examination and to allow defendant to properly
prepare for trial and be able to actively participate in their own
defense, and an
evidentiary
hearing on the vindictive prosecution claim. See
Adams,
870 F.2d at 1145-46 (holding that defendants were
entitled
to discovery on their vindictive prosecution claim and
stating
that .where there has been a prima facie
showing of .a
realistic
likelihood of vindictiveness,. it is incumbent upon
the
district court to .conduct an evidentiary hearing where the
government’s
explanations can be formally presented and
tested..)
(quoting United States v. Andrews,
633 F.2d 449, 453
(6th
Cir. 1980) (en banc)). To be entitled to such discovery, a
defendant
must come forward with .some evidence. of each of the
elements
of the defense. See United States v.
Armstrong, 517
U.S.
456, 465 (1996).
The
Neighbors have done this and the discovery
They
seek in particular all documentation of police reports, theft reports
in connection to any property that was seized during the searches
that had been reported stolen, witness statements, physical evidence,
documentation, video evidence and Grand Jury minutes, held by the
prosecutor and the Justice Department -- will bolster their
claims
that they are being targeted for prosecution because of
prosecutorial
vindictiveness. Cf. Adams,
870 F.2d at 1146 (.It
is
hard to see, indeed, how the defendants could have gone much
farther
than they did without the benefit of being able to see, copy or
investigate the discovery and evidence being used against them.
CONCLUSION
This
case has gone on for nearly four years. It has entailed filing
charges, dismissing charges, refilling charges, having the same
charges dismissed again. Unwarranted searches, illegal forfeiture
allegations, false arrest, public false allegations against the
defendants, incarceration, violations of speedy trial law, and the
violations of basic Constitutional rights that should be afforded to
every American citizen including the Neighbors. This case has gone on
long enough and due to its vindictive nature the Neighbors
respectfully request the courts dismiss all pending Indictments with
prejudice.
Dated
October 20, 2008.
Respectfully
submitted to the courts
By
Defendants Guy Neighbors and Carrie Neighbors
Pro-se
