Friday, October 24, 2008

10-20-08 Vindictive proscution motion for dismissal


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.

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

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.

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.

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.

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.

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.


Investigation by the Lawrence Kansas Police Department into the
Business Yellow House Store Incorporated began in December in 2005.

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.

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.

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.

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.

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.

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
Based upon the constitutionality of the definition.

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".

defendants having had no criminal background, or drug histories would
not fall under the vague definition of "unlawful user".

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.

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.

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).

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

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.

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.

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.

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.

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.

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).
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
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

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

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).

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. §
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


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!

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
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.

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
Scotia); United States v. Vallie, 284 F.3d 917, 921 (8th Cir.

(“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.

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
Leavenworth Maximum security detention Prison.

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.

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


08-20-08 Based on the August 8th, arrest, a One count
INDICTMENT In Federal Court is filed against the Neighbors by the
Governments Prosecutor Terra Morehead.

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.



punish a person because he has done what the law

allows him to do is a due process violation of the most

Bordenkircher v. Hayes,
434 U.S. 357, 363 (1978).

a prosecutor has broad discretion in his charging

there are two important limitations on this

a prosecutor may not bring charges with a

motive, since ..penalizing those who choose to

constitutional rights, .would be patently

North Carolina v. Pearce,
395 U.S. 711, 724

overruled on other grounds by Alabama v.
, 490 U.S.

(1989) (quoting
United States v. Jackson,
390 U.S. 570, 581

see Guam v. Fegurgur,
800 F.2d 1470, 1473 (9th Cir.

Nor may a prosecutor selectively enforce the law based

race, religion or some other arbitrary classification,

the exercise of rights under the First Amendment.

800 F.2d at 1473;
United States v. P.H.E.,
, 965 F.2d

similar, vindictive prosecution and 1 selective prosecution

distinct claims governed by different legal standards.

United States v. DeTar
, 832
F.2d 1110, 1112 (9th

1987). A motion to dismiss on grounds of selective

is filed herewith.

849 (10th Cir. 1992).

evidence of actual bad faith is necessary to establish the

of Prosecutorial Vindictiveness.
v. Perry
, 417 U.S. 21, 28
United States v. Groves,
571 F.2d 450, 454 n.1 (9th Cir. 1978);

v. DeMarco
, 550 F.2d 1224, 1227
(9th Cir. 1977);
see also

States v. Ruesga-Martinez
, 534
F.2d 1367, 1369 (9th Cir.

(.the mere
appearance of
vindictiveness is enough to place

burden on the prosecution.) .

the defendant shows that charges have been increased after they

exercised a constitutional or statutory right, the defendant

demonstrated an .appearance of vindictiveness. on the part

the prosecutor.
United States v. Shaw,
655 F.2d 168, 171

Cir. 1981) (citing
United States v.
, 571 F.2d at

With this
prima facie showing,
or other evidence of .a

likelihood of vindictiveness. Vindictiveness is

and the burden shifts to the government to prove that

increase in the severity of the charge was not based on a

See United States v. Spiesz,
689 F.2d 1326,

(9th Cir. 1982);
655 F.2d at 171;
United States v.

619 F.2d 531, 536 (9th Cir. 1980);
also Ruesga-

534 F.2d at 1369 (when prosecution reindicts

accused after he exercises a procedural right, the prosecution

a heavy burden of proving that any increase in the

of the alleged charges was not motivated by a

motive.). .

indictment must be dismissed if

is a finding of .actual. vindictiveness, or if there is a

of vindictiveness that has not been rebutted by

evidence justifying the prosecutor’s action,. The

must be dismissed.
United States v.
, 171

139, 140 (2d Cir. 1999) (per curium);
, 689 F.2d



case involves all forms of prosecutorial vindictiveness

by the courts.

as the prosecutor’s own

reveal, this ongoing prosecution of Guy and Carrie Neighbors is

by vindictiveness against the Neighbors for their continued exercise

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
of their peers. This cannot possibly be accomplished with the current
prosecutors handling this case.

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

of vindictive prosecution.
Cf. United
States v. P.H.E.,

965 F.2d 848, 853 (10th Cir. 1992) (holding that a

motivated by a desire to discourage expression

by the First Amendment is barred and must be enjoined

dismissed, irrespective of whether the challenged action

possibly be found to be unlawful) (citations omitted);

States v. Adams
, 870 F.2d 1140,
1145 (6th Cir. 1989)

broad discretion accorded prosecutors in deciding whom to

is not .unfettered,. and a decision to prosecute may

be deliberately based upon the exercise of protected

rights..) (citations omitted);
Brooks v.

450 U.S. 927 (1981) stating that a court must reconcile

rule that a prosecutor has broad discretion to file charges
there is probable cause with the rule that vindictive

by prosecutors is unacceptable and requires control);

also City of Houston v. Hill
482 U.S. 451, 462-63 (1987)

freedom of individuals verbally to oppose or challenge

action without thereby risking arrest is one of the

characteristics by which we distinguish a free nation

a police state..).

there is any doubt from the prosecutor’s words or actions that

prosecution is vindictive, the sequence of ongoing events since 2005
confirms this.

in other cases where courts

dismissed indictments due to prosecutorial vindictiveness,

prosecutors have repeatedly responded more harshly and vindictively
in response to the Neighbors continued assertion of their statutory
See Groves,

at 453-54;
550 F.2d at 1227-28;
see also Spiesz,

F.2d at 1328 (.A claim for vindictive prosecution arises

the government increases the severity of alleged charges in

to the exercise of constitutional or statutory
The result in this case ought not to be different.

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

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 .

Wright v. United States,
732 F.2d 1048 (2d Cir. 1984), the court

that a defendant has a constitutional right to a

prosecutor. and that a prosecutor .is not disinterested

she has, or is under the influence of others who

an axe to grind against the defendant. ....
at 1055.

prosecutor here as acted as a .stalking horse against the Neighbors

and is in no way disinterested.



The Neighbors believe that the prosecutor’s behavior and

the reasons for this prosecution and the new charges,

alone, requires that the Indictment be

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

hearing on the vindictive prosecution claim.

870 F.2d at 1145-46 (holding that defendants were

to discovery on their vindictive prosecution claim and

that .where there has been a
prima facie
showing of .a

likelihood of vindictiveness,. it is incumbent upon

district court to .conduct an evidentiary hearing where the

explanations can be formally presented and

United States v. Andrews,
633 F.2d 449, 453

Cir. 1980) (en banc)). To be entitled to such discovery, a

must come forward with .some evidence. of each of the

of the defense.
See United States v.
, 517

456, 465 (1996).

Neighbors have done this and the discovery

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

that they are being targeted for prosecution because of

Cf. Adams,
870 F.2d at 1146 (.It

hard to see, indeed, how the defendants could have gone much

than they did without the benefit of being able to see, copy or
investigate the discovery and evidence being used against them.


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

October 20, 2008.

submitted to the courts

Defendants Guy Neighbors and Carrie Neighbors


Wednesday, October 22, 2008

yellow house store Lawrence Kansas Federal Case

check this out this is a new motion filed in a very strange case in which the prosecutor is abusing the defendants rights. This has been a strange case in which the prosecutor has violated laws in order to falsely accuse someone of wrong doing.






Guy M. Neighbors Case No. 07-20124-01-02-KHV/DJW


Carrie M. Neighbors


To the clerk of the above – Entitled court and to the United States Attorney for the District of Kansas. Please take Notice that on the date and time indicated on this motion, the defendants Guy and Carrie Neighbors by and through Pro-Se action, will hereby does move to Dismiss the present indictment in the so called E-bay case on the grounds of “ Vindictive Prosecution” or alternatively for Discovery and or a Evidentiary Hearing in support of this claim. This motion is predicated on the files and records of this case and if filed Pro-Se by Guy and Carrie Neighbors on Oct. 22nd 2008

Guy Neighbors and Carrie Neighbors, pro-se hereby moves the Honorable Court to Dismiss the above captioned matter for prosecutorial misconduct, to-wit, Vindictive prosecution and as grounds therefore states for the record:

Petitioners believes and therefore asserts that the above titled case has been brought before the

Honorable Court by FRAUD in a mis-construction of statutes, by perjured testimony, by deprivations of constitutionally secured due process, conspiracy and by the commencement of a

vindictive prosecution by a prosecutor.

Contained herein is only the facts and the case law surrounding vindictive prosecution.

The defense cannot, in good faith proceed by waiving any constitutionally secured rights and the Honorable court cannot rule on issues that are not properly before it. The Prosecution has deliberately failed to rise to minimal standards of professional performance and has knowingly and intentionally impeded and obstructed justice in order to gain an unfair advantage in the Prosecution of defendants Guy and Carrie Neighbors USA v. Neighbors 07-20124-01-02 KHV/DJW. The petitioner has been repeatedly intentionally and selectively singled out for prosecution on matters that the STATE has shown no compelling interest in, and no probable cause for action.

A bad faith prosecution is generally defined as having been brought without a reasonable expectation of obtaining a valid conviction; however, bad faith and harassing prosecutions also encompass those prosecutions that are intended to retaliate for or discourage the exercise of constitutional rights. PHE, Inc. v. U.S. Dept. of Justice, 743 F.Supp. 15.

It is exceedingly clear that the Government is presently engaged in an on-going and continuing malicious, vindictive and retaliatory prosecution of the petitioner in order to unlawfully gain an advantage in a sealed civil action of a third party that has resulted from the abuse of authority by officials and civil rights violations of a witness connected to this investigation.


  1. Vindictive prosecution” occurs when government penalizes a person merely because he has exercised a

protected statutory or constitutional right. U.S. v. Paguio, 114 F.3d 928, appeal after remand 168 F.3d 503.

  1. In determining whether an indictment posed a reasonable likelihood of vindictiveness, the question was

whether the situation presented a reasonable likelihood of danger that the state might be retaliating against the accused for lawfully exercising a right, not whether there was a possibility that the defendant might be deterred from exercising a legal right. U.S. v. Esposito, 968 F.2d 300.

  1. To establish vindictive prosecution, defendant must show that prosecutor has some persona “stake” in

deterring defendant” exercise of his constitutional rights, and that prosecutor’s conduct was unreasonable. U.S. v. Wells, 211 F.3d 988, 2000 Fed.App. 161P.

  1. Prosecutor’s charging decision does not impose improper “penalty” on defendant unless it results from

defendant’s exercise of protected legal right, as opposed to prosecutor’s normal assessment of social interests to be vindicated by prosecution. U.S. v. Taylor, 749 F.2d 1511.

The defendants believes, and therefore alleges, that AUSA Marietta Parker, has suborned various witnesses through harassment, the bribery of deals and offering payment up to $80, to commit perjury pursuant to 18 U.S.C. §§ 1621 & 1622 before a Federal Grand Jury. Person’s known and unknown to the defendants; including but not limited to wit: testimony by Patrick Nieder Who stated under oath the defendant had trafficked $30,000 in Guns drugs for him, but did not know the defendant’s first name. And James P. Ludwig, who falsely testified that the defendants busy store Yellow House Appliances, while open to the public, openly displayed packaged drugs in the form of “green hairy balls” in full view behind the counter. Statement of facts given through the testimony of Postal Inspector David Nitz under oath during an evidentiary hearing 11-05-2007 before the Honorable Judge Lungstrum.


An indictment returned by a legally constituted grand jury may not

be challenged on the ground of inadequate or incompetent evidence,

Costello v. United States, 350 U.S. 359, 363 (1956), and may not be

dismissed for errors in the grand jury proceedings* which do not prej-

udice the defendant. Bank of Nova Scotia v. United States, 487 U.S.

250, 257 (1988). However, an indictment may be challenged on the

grounds of constitutional error and prosecutorial misconduct. United

States v. Mills, 995 F.2d 480, 486 (4th Cir. 1993).

Perjured testimony and suppressed evidence constitute due process violations. The rights of the accused were violated when the prosecution offered perjured testimony and withheld evidence favorable to the accused. DeLuzio v. People, 177 Colo. 389, 494 P.2d 589 (1972)

  1. Fifth Amendment prohibits Government from prosecuting defendant because of some specific animus or

ill will on prosecutor’s part or to punish defendant for exercising legally protected statutory or constitutional right.U.S.C.A. Const.Amend. 5. U.S. v. Benson, 941 F.2d 598, rehearing denied, mandate recalled and corrected 957 F.2d 301, appeal after remand 67 F.3d 641, opinion modified on denial of rehearing 74 F.3d. 152.

Defendants Guy and Carrie Neighbors believes, and therefore alleges, that in order to secure an Indictment in Federal Court on circumstantial evidence, absent of any compelling physical evidence beyond mere hearsay, AUSA Prosecutor Marietta Parker knowingly and intentionally conspired and colluded with Patrick Nieder and James P Ludwig to commit perjury under oath before the Federal Grand Jury, which therefore constitutes State and Federal Crimes, in conspiracy.

CONSPIRACY - 18 U.S.C. §371: makes it a separate Federal crime or offense for anyone to conspire or agree with someone else to do something which, if actually carried out, would amount to another Federal crime or offense. So, under this law, a “conspiracy” is an agreement or a kind of “partnership” in criminal purposes in which each member becomes the agent or partner of every other member); and prima facie intentional and malevolent violation of Ethical Rule 8.4 (c).

The Prosecutor AUSA Marietta Parker retaliated against the defendants with a superseding indictment that was filed 02-27-2008. Piling up additional charges to the fatally flawed Indictment, on top of the existing charges without any new incidents or additional evidence, in a vindictive move to Moot the defense’s motion to dismiss the Lis Pendens that had been placed against the defendants property .

  1. 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.

  1. Prosecution is “”vindictive” and violates due process if it is undertaken to punish defendant because he

has done something the law plainly allows him to do; thus, showing of actual vindictiveness require objective evidence of some kind of genuine prosecutorial malice. U.S.C.A. Const.Amend. 5. U.S. v. Porter, 23 F.3d 1274.

The defense alleges the prosecution has continually violated the right of due process of the law in retaliation for the defendants exercising their Constitutional rights of freedom of speech, requests for speedy trial, submission of formal complaints, and to “limit the liability” in the related Sealed Civil action by a witness.


The first step is the establishment of the “basic, primary, or historical facts: facts ‘in the sense of a recital

of external events and the credibility of their narrators. . . ‘” Townsend v. Sain 372 U.S. 293, 309 n. 6, 83 S.Ct.745,755 n.6, 9 L.Ed.2d 770 (1963) (quoting Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 446, 97 L.Ed. 469 (1953)(opinion of Frankfurter, J.)).

The second step is the selection of the applicable rule of law.

The third step and the most troublesome for standard of review purposes is the application of the law

to fact or, in other words, the determination “whether the rule of law as applied to the established facts is or is not violated.” Pullman-Standard v. Swint, 456 U.S. 273, 289 n. 19, 102 S.Ct. 1781, 1790 n. 19, 72 L.Ed.2d 66 (1982).

[2] The district court’s resolution of each of these inquires is, of course, subject to appellate review. The

appropriate standard of review for the first two of the district court’s determinations – its establishment of historical facts and its selection of the relevant legal principle has long been settled. Questions of fact are reviewed under the deferential, clearly erroneous standard. See Fed.R.Civ.P. 52(a). Questions of law are reviewed under the nondeferential, de novo standard. See, e.g., U.S. v. One Twin Engine Been Airplane, 533 F.2d 1106, 1108 (9th Cir.1976); Lundgren v. Freeman, 307 F2d 104, 115 (9th Cir.1962). These established rules reflect the policy concerns that properly underlie standard of review jurisprudence generally. Thus, because the application of law to fact will generally require the consideration of legal principles, the concerns of judicial administration will usually favor the appellate court, and most mixed questions will be reviewed independently. This is particularly true when the mixed question involves constitutional rights.

Accordingly, I would be content to rest the debate that has for so long engaged this court upon a statement

made by the Supreme Court, to which we look for leadership in such matters:

While this Court does not sit as in nisi prius to appraise contradictory factual questions, it will, where

necessary to the determination of constitutional rights, make an independent examination of the facts, the findings, and the record so that it can determine for itself whether in the decision as to reasonableness the fundamental i.e.,

constitutional – criteria established by this Court have been respected. . .” Ker v. California, 374 U.S. at 34, 83 S.Ct. at 1630. [United States v. McConney, 728 F.2d. 1195 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).]

A defendant alleging vindictive prosecution has the burden of showing an appearance of vindictiveness. The appearance gives rise to a presumption of vindictiveness. Whether there is an appearance of vindictiveness is a question of fact reviewed for clear error. See United States v. Clay, 925 F.2d 299, 302 (9th Cir. 1991). Once that fact is established, whether the presumption arises is a question of law reviewed de novo.

The Prosecutor in this case, U.S. Attorney Marietta Parker has continued to pile on charges and Indictments followed by selectively abusive arrests, searches, civil rights violations, theft of defendants property, incarceration and violation of the Constitutional right of due process of law using statutes that the defendants charges due not qualify for and which the evidence would not merit a trial conviction, brought forth in retaliation for the defendants exercising of the constitutionally secured right to Petition the Government for Redress of Grievance.

  1. Stalking Horse” Marietta Parker Prosecutor for the DISTRICT OF KANSAS US DEPARTMENT OF JUSTICE by and through abuse of power has

has been prevailed upon by conspiracy with law enforcement officers Jay Bialek, Micky Rantz, FBI Special Agent Walter Robert Schaefer “Bob Shaefer,” Postal Inspector David Nitz, IRS Agent Robert Jackson, KU Detective Michael Riner and Police Chief Ronald Olin, to convert the lawful statutes into purposes of commencing and conducting an unlawful retaliatory prosecution known in legal fiction as UNITED STATES V. GUY NEIGHBORS AND CARRIE NEIGHBORS CASE cr-20124-CM-JPO

  1. Successful assertions of vindictive prosecution are most common where defendant advances some

procedural or constitutional right and is then punished for doing so. U.S.C.A. Const.Amend. 5 U.s. v. Lanoue, 137 F3d 656.

  1. Prosecution is “vindictive” and violates due process if it is undertaken to punish defendant because he has

done something the law plainly allows him to do; thus, showing of actual vindictiveness requires objective evidence of some kind of genuine prosecutorial malice. U.S.C.A. Const.Amend 5 U.S. v. Porter, 23 F.3d 1274.

  1. Prosecution is “vindictive” and violation of due process if undertaken to punish person because he has

done what law plainly allows him to do; filing of indictment may in some instances be basis for such a claim. U.S.C.A. Const.Amend. 5. U.S. v. Polland, 994 F.2d 1262.


After executing the search of defendants Home and Business December 5, 2005, The search of the home located at 1104 Andover was executed without a valid search warrant at 9 am. After finding the room with the plants the officers got a “piggy back” warrant to cover-up for the fact no valid warrant was used to enter the property. This can be verified through an evidence hearing and a disclosure of documents. Valuable property was seized in violation of the search warrant, the seized property was improperly recorded, handled, some items never made it to the evidence custodian, and it was later disclosed to the defendants “three high-end laptops that the police agreed to return to the defendants were missing from the evidence room.”The seized property has been held indefinitely for nearly 4 years, in violation of due process of law, affording the defendants a right to a hearing before a Judge to determine what property should be held as evidence and what property should have been returned to the defendants.

If the Lawrence Kansas Police officers under the direction of Police Chief Ronald Olin involved with the execution of the search was found by a court of competent jurisdiction to have violated the Fourth Article in Amendment by an unlawful search and seizure, they would be criminally and civilly liable for $50,000 per day for theft of Petitioner’s lawful private registered property a standard administrative protocol commonly used by modern quasi-judicial tribunals and administrative agencies of the government to establish facts

prior to adjudication.

  1. Although prosecutor’s discretion as to whom to charge is particularly ill-suited to judicial review, discretion

is not unfettered and decision to prosecute may not be deliberately based upon unjustifiable standards such as race, religion, or other arbitrary classification, including the exercise of protected statutory and constitutional rights, and prosecutor may not select individual for prosecution solely because of exercise of rights under the First Amendment. U.S.C.A. Const.Amend. 1. Hunt v. Tucker, 875 F.Supp. 1487, affirmed 93 F.3d 735.

A prosecution based entirely upon an intentional and deliberate mis-construction and erroneous

application of the statutes creating a legal impossibility and having no remote chance of prosecutorial success before a jury is ipso facto “unreasonable” and constitutes a prima facie“ vindictive prosecution.” Such a wild, erratic departure from acceptable prosecutorial practice cannot possibly be normal or usual business. The vast resources and finances expended in this vindictive prosecution must also raise “red flags” in the mind of any reasonable person. What would a Prosecutor hope to gain, what great social evil would she strive to prevent? Before this case the defendants Guy and Carrie Neighbors were foster parents for 9 years to over 24 children, had been matched with a child through the Big Brother program for 10 years, had deep community involvement including working with the homeless, and ran their successful business in the community for 23 years. Had no prior history of criminal involvement of any kind. The simple answer is that this is a retaliatory prosecution.


prosecuting case #CR-20124-CM against the Petitioner and in doing so continues defending and conspiring with STATE actors in Federal Civil Rights violations against the defendants establishes a prima facie conflict of interest and a credible motive for a vindictive prosecution.

  1. In determining whether an indictment posed a reasonable likelihood of vindictiveness, the question was

whether the situation presented a reasonable likelihood of danger that the state might be retaliating against the accused for lawfully exercising a right, not whether there was a possibility that the defendant might be deterred from exercising a legal right. U.S. v. Esposito, 968 F.2d 300.


There is no doubt that numerous GOVERNMENT AGENCIES have a “vested

interest in the outcome” of this case. There is no doubt that the ACTING US ATTORNEY FOR THE KANSAS DEPARTMENT OF JUSTICE FOR THE DISTRICT OF KANSAS,

has a conflict of interest in continuing the prosecution of this case, based on the mere fact that the defense has been severely prejudiced by the fact all the formal complaints by the Neighbors and the witnesses that were turned into the Internal Affairs for color of law violations and civil rights violations involving all cases and actions in this investigation have been forwarded to Marietta Parkers office at the Department of Justice. Complaints that should have been investigated by a third disinterested party were instead being used by the Prosecutor against the defendants for retaliation and cover-up purposes.

The obvious conflict of interest cannot be ignored.

The open and unconcealed pernicious and egregious prosecutorial vindictiveness in this instant matter justifies the severe sanction of dismissal with prejudice,

Defendants respectfully ask this Honorable court for the dismissal of the Indictment USA v. Neighbors 07-20124-01-02-khv, cr-20073-CM. “EBay case” including the superseding indictment.

A trial court may grant a motion to dismiss pursuant to CrR 8.3 (b) if there has been any arbitrary action or governmental misconduct resulting in prejudice to the rights of the accused which materially affect the accuser’s right to a fair trial. Or upon denial of the dismissal of the fatally flawed Indictment, the defense formally requests an evidentiary hearing and further request that all the transcripts and discovery presented to the Grand Jury by the Prosecutor be made available to the defense.

Respectfully submitted as truth under oath to the courts for considerations by Pro-se Defendant petitioners Guy Neighbors and Carrie Neighbors.

Whenever any person is required to take an oath before

he enters upon the discharge of any office, position, or

business or on any other lawful occasion, it is lawful for

any person employed to administer the oath to administer

it in the following form: The person swearing, with his hand

uplifted, shall swear by the ever living GOD