IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRIC OF KANSAS
UNITED STATES OF AMERICA
Carrie M. NEIGHBORS Case No. 07-20124-01-02-KHV/DJW
Notice of Motion Requesting a
Change of Venue and to Have
Both Prosecutors Recues
Themselves from Said Cases as
To Avoid the Appearance of
A Conflict of Interest.
Comes now Defendant Guy Neighbors pro-se, and asks the honorable court to change the venue of all the cases UNITED STATES V. GUY NEIGHBORS & CARRIE NEIGHBORS 20124-01-01, 07-20073-01/02 jwl/djw, 08-20105 jwl/jpo, from the State of Kansas to the State of Nebraska, and that the Prosecutors Marietta Parker and Terra Morehead Recuse themselves from the cases on the grounds that the Defendants cannot receive a fair trial or be tried by an impartial prosecutor in the State of Kansas.
Wherefore the defendants pray that the courts will grant this request in the interest of Justice, and the defendants would respectfully ask the honorable court to court to consider the special circumstances surrounding this case in that the prosecutor is now acting District Attorney for the District of Kansas and the defendants have filed motions claiming prosecutorial misconduct, have exhibits from other defendants that will show a pattern of abuse and said defendants have filed a complaint against the prosecutors under 42 U.S.C. 1983 for Civil Rights Violations.
The prosecutor now has a vested interest in getting a conviction above and beyond the interest of Justice. The defendants pray the court will entertain this pro- se motion as to avoid any appearance of a conflict of interest that could prejudice the defendants.
The 14th Amendment guarantees the fundamental rights of citizens to due process and such rights require the scrutiny of the Court. If the Court decides that it has the right to deny the defendants due process by refusing to consider their pre- trial pro-se motions, then the Court is failingto insure justice in this case. Alternatively if no change of venue is granted, then the defendants ask for a dismissal of all charges.
Because a defendant has no constitutional right to hybrid representation, the decision to allow such representation lies within the sound discretion of the trial court. This case merits such a need for pro-se motions because the Prosecutors control over the defendant’s attorneys have caused prejudice upon the defendants in this case.
Although many jurisdictions have refused to recognize a right of counseled defendants to exercise their 6th Amendment right to lend assistance of their counsel in their own defense, it is ultimately left to the discretion of the trial court to determine whether such participation is permitted (see, e.g., United States v Einfeldt, 138 F3d 373, 378 [8th Cir], cert denied 525 US 851; United States v Tutino, 883 F2d 1125, 1141 [2d Cir], cert denied 493 US 1081; United States v LaChance, 817 F2d 1491, 1498 [11th Cir], cert denied 484 US 928; United States v Mosely, 810 F2d 93, 97-98 [6th Cir], cert denied 484 US 841; United States v Halbert, 640 F2d 1000, 1009 [9th Cir]; State v Frye, 224 Conn 253, 256, 617 A2d 1382, 1384-1385; State v Long, 216 NJ Super 269 275-276, 523 A2d 672, 675-676).
While there may be circumstances where the unjustified refusal to entertain meritorious pro se motions would constitute an abuse of discretion, that circumstance does not apply when a defendants Constitutional rights are jeopardized.
DEFENDANTS HAVE A CONSTITUTIONAL RIGHT TO BE HEARD
The decision to allow hybrid representation implicates the trial court's function in ensuring the orderly administration of the proceedings and the special circumstances in this case. (see, People v Mirenda, supra, 57 NY2d, at 266). As such, it is a matter committed to the sound discretion and of the Trial Judge.
The defendants respectfully ask this court to change venue or dismiss through this pro se complaint under oath alleging violations of civil and Constitutional rights , conspiracy, direct conflict of interest, and prosecutorial misconduct, and therefore the courts must read the complaint's allegations expansively, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972), and take them as true for purposes of deciding whether they state a claim. Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1081, 31 L. Ed. 2d 263 (1972). Moreover, "the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory." onner v. Circuit Court of St. Louis, 526 F.2d 1331, 1334 (8th Cir. 1975) (quoting Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir. 1974)).
There are fundamental rights of citizens to due process and such rights require strict scrutiny of the Court.
The courts have assumed that the sixth amendment rights to representation by counsel and to defense pro se are mutually exclusive. Under the hybrid defense the defendant has the active assistance of counsel but may also participate in his own defense as co-counsel. A necessary tool to ensure justice when the defendant has been prejudiced by the restrictions placed upon the defense by the Prosecutors in the case.
The defendants are currently represented by competent counsel but are forced to file motions pro-se because the Prosecutor has created prejudicial limitations upon the defense attorneys, by violating the defendants right to assist their attorneys in their own defense, and controlling through limitations how the defense attorneys handle the defense of their clients through the “contract to withhold discovery from the defendants” This is a standard contract that the prosecutor has forced the defense attorneys representing clients in cases she is prosecuting to sign. All defense attorneys in USA v. Neighbors have confirmed they were forced to sign this contract before accepting the case. (see exhibit# 1 page 1 &2, a copy of Terra Moorhead’s illegal contract to withhold discovery from defendant) in violation of Federal Rules of Criminal procedure, rule 16, which clearly states the defendant has rights to the discovery. At no time does Rule 16 say the prosecutor has a right to force the defendant’s attorney to sign a contract to withhold discovery from defendant, nor does this Federal rule give the Prosecutor the right to only disclose the discovery to the defendants attorney)
The Prosecutor has made it nearly impossible for the defendants to assist in their own defense, by forcing the defense attorneys to sign a contract that does not allow the defendants to view, copy, or obtain the evidence that is being used against them. A clear violation of the defendant’s rights.
Paid attorneys hired by the Neighbors have been threatened with “Money Laundering” charges by the Federal prosecutors in an attempt to control the defense. (see exhibits labeled money laundering #2)
(Defense attorney Sarah Swain told the defendants the prosecutor had threatened her with “Money Laundering” and therefore would need all future payments to be made with credit cards. Defense Attorney Aaron McKee was threatened with “Money Laundering” and requested that the defendants set up a paypal account using someone else’s name in order to pay him, then as shown in the exhibit even placed the request for paypal on the bill. After the defendants accused the Attorney of coercion with the prosecutor the payment option was removed. See Exhibit #2 pg.2 )
This hybrid pro-se motion accommodates the fundamental values underlying the sixth amendment and should be recognized as the constitutionally compelled approach, for defendants implementing “the right to assistance of counsel.”
It is a matter of fact that the Prosecutor Marietta Parker has a direct conflict of interest in Prosecuting this case and do to the fact she is currently the Acting United States Attorney for the District of Kansas, overseeing the DISTRICT OF KANSAS Department of Justices in Topeka, Wichita, and Kansas City, and is currently in direct control of overseeing over 100 attorneys.
The defendants cannot possibly be assured a fair, un-bias and impartial prosecution and trial in the State of Kansas. The disqualification of Government counsel is indeed a drastic measure " Bullock v. Carver, 910 F. Supp. 551, 559 (D. Utah 1995) "where it is shown that an Assistant United States Attorney is subject to a conflict of interest, the proper remedy generally is to remove that individual from the case. Crocker v. Durkin, 159 F. Supp. 2d 1258, 1284-85 (D. Kan. 2001).
During the course of the investigation starting in 2005 into the Yellow House Business, the Defendants and their defense attorney along with numerous witnesses turned in formal complaints alleging Police misconduct, color of law violations, racial profiling, rules of evidence handling violations, evidence storage violations, due process of law violations, search violations, false arrest, forgery of legal documentation, harassment and coercion of witnesses, along with the allegation of an altered video being presented to the courts as evidence, and several months of covert surveillance from the Fire station across the street, absent of a court order. These complaints inadvertently were sent to the Prosecutor, yet the Prosecution has excluded all of this exculpatory evidence from the defendants discovery files handed over to the defense attorneys in the case.
(In a direct conflict of interest) All these complaints were forwarded by Internal Affairs Sgt. Dan Ward under the direction of Chief Ronald Olin, to the Kansas City Department of Justice, and ended up in the prosecutor of the case; AUSA Marietta Parkers office for review and action.
In support of this allegation: (see exhibit #3 letter from KU Police Director Ralph V. Oliver informing the Neighbors that the complaint was forwarded to the AUSA Marietta Parker and all further complaints should be forwarded to her.) Also see Chief Olins letter to attorney Sarah Swain advising that Marietta Parker was the one to address complaints to. (In exhibit #4 pg. 5)
Instead of insuring justice on behalf of the defendants rights violations, the US Attorney’s office has conspired with law enforcement, staged an FBI investigation (see FBI exhibits #4 pages 1 through 15)
(Exhibit #4 page 1 &2, Signed affidavit by Laura Helm stating she was picked up by two officers posing as FBI agents.)
(Exhibit #4 page 3 & 4, Interview-statement by Brad Perico to Private Investigator Cecilia Woods stating he was contacted by two officers claiming the FBI was investigating the Yellow House and had him on tape going into the business with a drill.)
(Exhibit #4 page 5, Letter to defense attorney Sarah Swain from Police Chief Ron Olin stating that he could not release the identity of the Federal Investigators, that Police posing as FBI would be a crime, and that Special Agent Bob Shaefer had spoken to her about the issue. He also states that further correspondence concerning the case should be directed to U.S. Attorney Marietta Parker.)
(Exhibit #4 page 6 & 7, Letter to Sarah Swain from the FBI explaining that U.S. Attorney Marietta Parker sent FBI Special Agent Walter Schaefer to investigate the allegations of police posing as FBI agents, verifying 60 days had passed and made reference to repeated unanswered phone calls made by Swains office to the FBI in an attempt to set up further meetings with SA Schaefer. According to Special Agent Scott Gentine from the Topeka FBI, the letter was Signed by a retired special agent Kevin Stafford, sent by Timothy A Gallagher)
(Exhibit #4 page 8, letter to Bob Schaefer FBI, from Defense attorney Sarah Swain)
(Exhibit #4 page 9 & 10, article in LJworld newpaper that the FBI was investigating the conduct of police in the Yellow House investigation. Jeff Lanza also confirmed the FBI was not involved in the Yellow House investigation.)
(Exhibit #4 page 11, article in LJworld Newspaper stating that the FBI investigation was stalled and that the FBI had not received a formal complaint. Even though the defense attorney had attempted multiple times to set up meetings, some days attempted to call SA Schaefer 6 times without a return call, left messages and faxes for SA Schaefer.)
(Exhibit #4 page 12, Article in LJworld Newspaper confirming the FBI had completed the investigation and cleared the police of misconduct.)
(Exhibit #4 page 13, letter to Agent Schaefer from Defense attorney Sarah Swain letting him know she had forwarded a sworn affidavit of illegal conduct by the Lawrence Police, and had made numerous attempts to contact him about the matter but had gotten no response from him.)
The Government in a controlled reaction, used the information contained in the complaints forwarded to her, to use her team of investigators to retaliate and conspire against the defendants and then in an abuse of her power, also controlled the defense attorneys handling the case.
In order for a defendant to prove conspiracy the defendant need not allege personal involvement by all the parties. When a person is part of a conspiracy, one does not require a hub and spoke form. One need only be part of a chain of conspirators.
Law enforcement officers Jay Bialek, Mickey Rantz, Michael Riner, Police Chief Ron Olin, Postal Inspector David Nitz, IRS Agent Robert Jackson and the Kansas City FBI Agent “BOB SHAEFER” Walter Robert Schaefer, were employed by the Prosecutor as her agents to do the dirty work on her behalf, outside of their agencies jurisdictions with her full knowledge and approval. In conspiracy to cover-up, conceal, obstruct justice, and limit liability in order to avoid accountability for the Governments unjust actions against the defendants.
Conspiracy to violate civil rights
In order for this court to establish a cause of action to change of venue or dismissal for conspiracy, there must be sufficient facts to support the following elements:
1) two or more persons;
2) an object to be accomplished;
3) a meeting of minds on the object or course of action;
4) one or more unlawful acts; and,
5) “damages” directly linked to the violation of the defendants rights..
Obviously there are two or more persons involved.
The object to be accomplished is to obstruct justice, cover up for color of law violations and prosecutorial misconduct, obtain a conviction through fraud, to cover up criminal conduct against citizens by officials, and to avoid liability.
The Government clearly had a unity of purpose or a common design and understanding in their joint efforts to avoid liability and conceal Constitutional rights violations. The Prosecutors Terra Morehead and Marietta Parkers actions were clearly improper and directly connected to the conduct of the acting Government officials under her command. There is no other explanation as to why these Prosecutors would break the rules to cover up reports of criminal activity by Law enforcement against a wrongly accused citizen other than that they had joined into a common purpose with the team.
The unlawful acts against the defendants have greatly prejudiced the defense and have been documented through photographs, video’s and voice recordings, court documents, affidavits, and testimony under oath during various hearings before Federal Judges overseeing this case.
These are very serious allegations and this court has a duty to the Constitution to protect the integrity of the courts. Therefore, this District of Kansas court, which has a prima facia conflict of interest, has a duty to construe this pro- se motion very liberally and grant the defendants request for change of venue or dismissal of charges, in order to protect the public perception of the integrity of this court.
A FAIR TRIAL FOR THE DEFENDANTS IS NOT POSSIBLE IN THE STATE OF KANSAS or MISOURI
AUSA prosecutor Terra Morehead has interfered with the Defendants Guy and Carrie Neighbors fair chance to defend themselves.
Terra Morehead originally charged the defendants with being unlawful users with firearms. A statute that the case did not qualify under. Because the defendants had no criminal history, there was no evidence of habitual drug use, and the firearms were expensive collector “non-qualifying” firearms unloaded and unlawfully seized without a warrant by law enforcement from a locked safe.
During several hearings before Federal Judges, law enforcement officers have read fabricated stories by witnesses and lied under oath, to the court .
The prosecutor has taken things out of the defendants discovery. Certain things that were seen in the discovery while in the possession of past attorneys Bruce Kipps, Philip Gibson, Alex McCauley and James George have been changed or switched out. ie. Police evidence reports, statements, search warrants, receipt for same list.
The Courts have been made aware of the fact that the false testimony by convicted felon Patrick Nieder was presented before the Grand Jury in exchange for an 8 year reduction of his prison sentence.
On July 1, 1998, a 3-judge panel of the 10th Circuit, U.S. Court of Appeals delivered a decision, in the case U.S. v. Singleton, The 10th Circuit ruled that bartered-for, testimony in federal criminal court is not only illegal and inadmissible, but technically punishable by a substantial fine, and/or up to 2 years in prison.
Prosecutors have offered both cash payment and leniency to some witnesses, and offered plea deals to Louis Parsons and James P. Ludwig in exchange for anticipated false testimony at trial claiming that the Defendant Carrie Neighbors conspired with them to conceal the conspiracy, absent of any existing evidence to substantiate these claims. It is the responsibility and duty of the prosecutor to always try to substantiate (what) any witness for the government is going to be saying.
In a separate case in a 31-page ruling U.S. District Judge William J. Zloch threw out the testimony of three accused drug defendants on grounds that it was solicited with a prosecutor's promise of a reduced sentence a violation of federal bribery laws, he ruled. In this case.
"U.S. Code, Title 18, Section 201©(2) (the 'bribery statute' could not be more clear. It says: Whoever . . . directly or indirectly, gives, offers or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial, hearing, or other proceeding, before any court . . . authorized by the laws of the United States to hear evidence or take testimony . . . shall be fined under this title or imprisoned for not more than two years, or both."
A sting video was altered, and there is documented missing evidence, from the police evidence locker, but the Federal Prosecutors have continued the prosecution of this case anyway.
The Prosecutors have used their influence and power of authority to control the Federal Agencies, witnesses and Defense attorneys involved with this case.
And have exercised in a similar pattern of abuse of power in other cases as well.
(See exhibit #5 pages 1-5, JOHNNIE WILLIAMS III, case 06-20047-01-cm. letter to Chief Judge Lungstrum alleging misconduct by Prosecutor Terra Morehead )
(Exhibit #6 pages 1-5, JASON McKINNEY dated June 30,2008 complaint sent to The Office of Disciplinary Administrator, alleging malicious prosecution by AUSA Terra Morehead.)
(Exhibit #7 pages 1-4, James McKeighan letter to The Honorable Judge Lungstrum dated Jan. 22, 2007, alleging Prosecutorial Misconduct against Terra D Morehead)
The Prosecutors have interfered with the defense attorneys filing motions on behalf of their clients.
IE. The Neighbors requested that Attorney Phil Gibson file a motion to release an illegal lis pendens placed against their property by the Prosecutor. The motion was filed and Judge Murguia scheduled a hearing the following week. Mr. Gibson then canceled the court date. After 3 week delay, the motion was refilled and four days later the Prosecutor filed a Superseding indictment to moot the motion. With the sale of the house still in limbo and the buyers getting anxious the defendants asked Mr. Gibson to refile the motion, he agreed to refile that weekend but then, even after repeated requests from the defendants never did refile the motion. After several more weeks the sale of the house had to be terminated.
The Prosecutors in this case have violated the Neighbors Bill of RIGHTS!
Amendment V.- Deprived the Neighbors of life, liberty, and property.
A.- Life- The Prosecutor has had the Neighbors arrested by agents operating outside their Jurisdictions several times, searched, and held in custody, using statutes and laws that do not apply. Ruined their business, reputations within the community, the false allegations have cost the Neighbors their Foster care license and their affiliation with the Big Brothers program, In 2005,Prior to any charges being filed the Government contacted ebay and made false unsubstantiated allegations resulting in the immediate suspension of the defendants seller account and also resulted in the defendants money in the Paypal account being frozen., greatly affecting the defendants livelihood and ability to run their business and pay bills.
Public False allegations released to the press include stolen property fencing, money laundering and drug trafficking . And on the DOJ press release web site falsely claimed the Yellow House crimes had been investigated by the FBI.
B-Property- The Government has been holding Property since December 2005, property unlawfully seized during the execution of a violated search warrant, and gained through an illegal warrantless search , denying the defendants constitutional right to due process of law.
Amendment VI. Right to Speedy Trial and effective council.
A- violation of right to speedy trial. The original charges of being an unlawful user with firearms was originally dropped with just 7 days left before the time limit of a speedy trial ran out. The same charges were re-filed as a brand new case, and the prosecutor had the Neighbors strong armed arrested from their home and illegally searched.
B- The original search and seizure was executed in December of 2005. This is now November of 2008.The Neighbors have been denied the due process of Law, have not been allowed to view the discovery or see the evidence being held against them. Because of the Prosecutors threats against the defense attorneys, during the three years the case has been in the courts, the defendants have not had any motions filed by the defense attorneys directly related to defending the case ie. standard Motion Requests for evidentiary hearing, request to see the evidence, request for dismissal, request for suppression of evidence. The Neighbors have not been afforded an investigator to conduct interviews of witnesses nor has the prosecution allowed the defendants to see the list of witnesses scheduled to testify at trial on behalf of the prosecution.
C- The Prosecutor has forced the Neighbors to loose paid attorneys, and then forced them to use court appointed attorneys that are willing to sign her contract and allow her to maintain a strong influence over the handling of the defense.
This court has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of self-interests. Every lawyer and prosecutor is responsible for observance of the Rules of Professional Conduct. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.
The United States is a government of the people, by the people, and for the people. The judicial system’s function is to serve the public by providing a means to serve justice and to resolve disputes. This can only be done in an environment where honesty, integrity, and high moral standards are strictly enforced.
There is an obvious mix of Conflict of Interest and Special Circumstances in this case that together will prevent the Neighbors from entertaining their Constitutional right to a fair and impartial prosecutor. Since the judicial system is self-governing and is therefore responsible for policing itself, it has become obvious that the Neighbors cannot possibly expect a fair trial under these circumstances. Therefore the Neighbors respectfully ask the courts to grant this Pro-se Motion to Change of Venue or Dismiss all charges.